Citation Nr: 1237704 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 08-09 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to increases in the "staged" ratings (of 20 percent prior to August 29, 2011, and 40 percent from that date) assigned for the Veteran's lumbosacral disc disease. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1976 to June 1979, from July 1981 to November 1991, and from February 2003 to June 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, granted service connection for lumbosacral disc disease, rated 20 percent, effective August 10, 2005. In September 2007, a hearing was held before a Decision Review Officer (DRO) at the RO; a transcript of the hearing is associated with the Veteran's claims file. He failed to appeal for an April 2011 video conference hearing before the Board scheduled at his request. This matter was previously before the Board in May 2011 when it was remanded for additional development. An April 2012 rating decision increased the rating for the lumbosacral disc disease to 40 percent, effective August 29, 2011. Since the Veteran has not expressed satisfaction the "staged" ratings, the matter remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The issue is characterized to reflect that staged ratings are assigned, and that both "stages" of the rating are for consideration. The May 2011 remand included the matter of service connection for a left knee disability (on de novo review). A September 2012 rating decision granted service connection for a left knee disability, effective August 29, 2006. The Veteran has not expressed disagreement with the rating decision, and that matter is no longer before the Board. FINDINGS OF FACT 1. Prior to Oct 2, 2006, the Veteran's lumbosacral spine disability was not shown to have been manifested by forward flexion of the thoracolumbar spine limited to 30 degree or less or by favorable ankylosis of the entire thoracolumbar spine; and separately ratable neurological symptoms (other than right lower extremity radiculopathy) or incapacitating episodes of intervertebral disc syndrome were not shown. 2. From October 2, 2006, the Veteran's lumbosacral spine disability is reasonably shown to have been manifested by limitation of flexion to apparently 30 degrees; unfavorable ankylosis of the entire thoracolumbar spine; additional separately ratable neurological manifestations; or incapacitating episodes of intervertebral disc syndrome. CONCLUSION OF LAW The Veteran's lumbosacral disc disease warrants staged ratings of 20 percent prior to October 2, 2006; and 40 percent (but no higher) from that date. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (Code) 5243 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant 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; (3) and that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). As the January 2007 rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A January 2008 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to increased initial ratings; and a September 2012 supplemental SOC (SSOC) readjudicated the matter after the Veteran and his representative had opportunity to respond. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The Veteran's pertinent treatment records have been secured. The May 2011 Board remand requested that the Veteran identify all providers of treatment and evaluation he has received for his service-connected back disability, and to provide releases for such providers. In February 2012, the Veteran reported that he wanted his claim to not rely on any private records considering the favorable response from his VA examination (in August 2011). See VA Form 21-0820 (Report of General Information). He identified VA treatment records only in his January 2012 VA Form 21-4142s (Authorization and Consent to Release Information to VA) for the period on appeal (and such records were secured). The Veteran was afforded VA examinations in October 2006 and August 2011. These Board finds such examinations to be cumulatively adequate for rating purposes as the examiners reviewed the claims file and conducted thorough examinations of the Veteran, noting all findings necessary for consideration of the claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any pertinent outstanding evidence that remains outstanding. VA's duty to assist is met. B. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that all of the evidence in the Veteran's claims file, to include Virtual VA (VA's electronic storage system), 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. In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part IV. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria 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); 38 C.F.R. §§ 3.102, 4.3. "Staged" ratings are appropriate with the initial rating assigned with an award of service connection when the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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, including the degree of disability, shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 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). The Veteran's service-connected lumbosacral disc disease is rated under Code 5243which provides for rating under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula or based on incapacitating episodes, whichever is more favorable to the Veteran. 38 C.F.R. § 4.71a, Code, 5243. Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching, the following ratings will apply. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or where there is a favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. There are several notes following the General Rating Formula criteria, which provide: (1) Associated objective neurological abnormalities are to be rated separately under an appropriate diagnostic code. (2) For purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of the thoracolumbar spine is 240 degrees. (3) In exceptional cases, an examiner may state that, because of age, body habitus, neurological 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 the regulation. 38 C.F.R. § 4.71a. 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, Note 1following the Formula for Rating Based on Incapacitating Episodes. [As bedrest is not shown to have been prescribed at any time during the evaluation period, further discussion of the incapacitating episodes rating criteria is not necessary.] In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more of less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. An August 2005 VA treatment record notes the Veteran's complaint of back pain. MRI of the lumbar spine showed left L1-L2 disc protrusion impinging on cauda equina and L3-L4 foraminal disc protrusion. An October 2005 VA treatment notes the Veteran's complaint of mid-back pain. On physical examination, there was some loss of the lumbosacral lordosis. Range of motion studies revealed full extension and forward flexion to 90 degrees. Lateral flexion produced some discomfort. December 2005 private treatment records note the Veteran's complaint of low back pain after twisting his back at work. The diagnosis was acute lumbar sprain. January 2006 VA treatment records note the Veteran's complaint of chronic low back pain after his back went out at work. He received an injection at the emergency room. May 2006 MRI of the lumbar spine revealed mild degenerative changes, with no spinal stenosis, disc herniation, or nerve root impingement at any level. On October 2, 2006 VA examination, the Veteran complained of sharp low back pain (rated a 6 on a scale to 10). Approximately two times per week, he had severe low back pain (rated an 8 on a scale to 10). When he had flare-ups, he had to slow down, rest, and have others assist him with tasks. He denied visual disturbances, weakness, bladder or bowel complaints, or erectile dysfunction. He did not use assistive devices such as canes, crutches, walkers or back braces. He could walk approximately 20 minutes before his back began to give him problems, at which point he had to slow down and rest. He did not have a history of unsteadiness or falls. Activities of daily living are not affected, and there was only some affect on his occupation, as he would need to slow down and he could not complete his usual duties without pain. He no longer engaged in recreational activities. He reported four days of physician sanctioned work loss over the last 12 months secondary to acute flare-ups and incapacitation. On physical examination, range of motion studies revealed lumbar spine forward flexion to 35 degrees (pain starting at 60 degrees); extension to 22 degrees; left lateral motion to 28 degrees; right lateral motion to 26 degrees; left rotary motion to 28 degrees; and right rotary motion to 30 degrees. The examiner estimated that there would be a 15 degree [additional] loss of function with an acute flare-up of pain with repetitive motion, but the exact degrees of dysfunction was not clinically possible. The examiner also noted that it was his estimation that there would be further lumbosacral functional limitations after repetitive use of severe severity, mostly manifested by pain. There was diffuse tenderness over the L3-L5 interspace and over the left iliac crest. Gait was slightly antalgic to the left. The diagnosis was lumbosacral disc disease with multilevel involvement and an annular tear. A March 2007 VA treatment record notes the Veteran's complaint of increased low back pain lately. April 2008 VA treatment records notes the Veteran's complaint of chronic low back pain that had flared-up in the past few days (rated 5 on a scale to 10). The pain worsened when he tried to bend over or to rise from a sitting position. Medication only slightly relieved his pain. On physical examination, there was tenderness with arising from a sitting position, or attempting to flex forward. His gait was steady but slow and his posture was misaligned. A December 2008 record notes the Veteran's complaint of low back pain. A January 2009 report notes his complaint of back pain due to cold weather. September 2009 reports note his complaint of lower back pain (rated 4 on a scale to 10). He indicated the pain was a constant ache, exacerbated by sneezing, bending over, lifting heavy objects, and cold weather; the pain was partially relieved by rest and medication. On physical examination, there was mild low back tenderness. August 2011 VA treatment records note his complaint of lower back pain. lumbosacral spine x-rays showed degenerative narrowing of disc space at L1-L2, L2-L3, and mild kyphosis; prominent upper lumbar osteophytes; normal facets; and no spondylosis or spondylolisthesis. On August 29, 2011 VA examination, the Veteran's gait was normal; there was no evidence of gibbus, kyphosis, lumbar lordosis, lumbar flattening, reverse lordosis, list, scoliosis, cervical spine ankylosis, or thoracolumbar spine ankylosis. On physical examination, there was no evidence of thoracolumbar spasm, atrophy, guarding, pain with motion, tenderness, or weakness. Range of motion studies revealed flexion to 10 degrees; extension to 10 degrees; bilateral lateral flexion to 15 degrees; and bilateral lateral rotation to 15 degrees. There was no objective evidence of pain following repetitive motion, and no additional limitations after three repetitions of range of motion. MRI of the low back showed multiple levels of degenerative disc disease with degenerative joint disease resulting in mild spinal stenosis. February 2012 VA treatment records note a complaint of lower back pain (rated 3 on a scale to 10). Prior to October 2, 2006 As the disability was already rated 20 percent, the focus is on those criteria that would warrant the next higher (40 percent) or higher rating. A review of the record prior to October 2, 2006 found no period of time when forward flexion of the thoracolumbar spine was limited to 30 degrees or less or when the thoracolumbar spine was ankylosed, even when taking into account additional loss of motion due to pain, fatigue, weakness, or lack of endurance. Notably, on October 2005 VA treatment forward flexion was to 90 degrees. Separately ratable neurological symptoms (other than right sciatic nerve radiculopathy, which is separately rated, and that rating is not at issue herein) were not shown. Consequently, a schedular rating in excess of the 20 percent assigned was not warranted. From October 2, 2006 On October 2006 VA examination, the examiner found lumbar spine forward flexion limited to 35 degrees. The examiner opined that there would be an additional 15 degrees of functional limitation (i.e., forward flexion) during flare-ups (which would bring forward flexion limited to less than 30degrees). The Board concludes that such finding reasonably meets the General Rating Formula criteria for a 40 percent schedular rating, and that such rating is warranted from the earlier effective date of October 2, 2006. The analysis turns to whether a rating in excess of 40 percent may be warranted for an period of time under consideration. The record does not show any period of time when the thoracolumbar spine was ankylosed, much less ankylosed at an unfavorable angle, so as to warrant the next higher, 50 percent, rating under the General Rating Formula. Furthermore, there has been no finding of neurological manifestations (other than the already separately rated right sciatic raduculopathy) that would warrant a separate rating. And, as was noted above, the Veteran has not been placed on bedrest by a physician. Accordingly, no schedular criteria for a rating in excess of 40 percent are met, and a schedular rating in excess of 40 percent is not warranted. The Board has also considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court outlined a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, 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 claimant's level of disability and symptomatology and is, thus, 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 lumbosacral disc disease and its associated impairment to the schedular criteria under which the disability is now rated, the Board finds that the degree of disability shown throughout the appeal period under consideration is wholly encompassed by those schedular criteria, and that consequently, those criteria are not inadequate. As the first threshold requirement under Thun is not met, the analysis does not need to proceed further; referral of the claim for extraschedular consideration is not warranted. Finally, as the record does not show, nor has the Veteran alleged, that he is rendered unemployable by virtue of his lumbosacral disc disease; the record shows that he is employed, and has largely been employed throughout the appeal period. Accordingly, the Board finds that the matter of a total rating based on individual unemployability is not raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A 40 percent rating for lumbosacral disc disease is granted from (the earlier effective date of) October 2, 2006, subject to the regulations governing payment of monetary awards; a rating in excess of 40 percent is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs