Citation Nr: 1300733 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 11-00 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for spondylosis and discogenic disc disease of the lumbosacral spine with arthritis, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1953 to June 1957, and from December 1957 to February 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This appeal was previously before the Board in May 2012, at which time it was remanded for additional development. The Veteran was notified regarding outstanding private treatment records, current VA treatment records were obtained, and the Veteran was afforded a VA examination of the spine in June 2012. Given the foregoing, the Board finds that VA has substantially complied with the Board's prior remand with regard to this appeal. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with Board's remand instructions). The Virtual VA efolder has been reviewed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran's lumbar disability did not show forward flexion limited to 30 degrees or less, and was without evidence of favorable ankylosis of the entire thoracolumbar spine. 3. There were no physician-prescribed periods of bedrest during the period on appeal. There were no objective findings of radiculopathy. CONCLUSION OF LAW Criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.16, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in pre-rating correspondence dated June 2010 of the information and evidence needed to substantiate and complete his claim, to include information regarding how disability evaluations and effective dates are assigned. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claim, and as warranted by law, providing VA examinations. The June 2012 VA examination report contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal, and is adequate for purposes of this appeal. There is no evidence that any VA error in notifying or assisting the Appellant reasonably affects the fairness of this adjudication. Indeed, the Veteran has not suggested that such an error, prejudicial or otherwise, exists. Hence, the case is ready for adjudication Applicable Laws and Regulations Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). 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 (West 2002). Where an increase in the level of a service-connected disability is at issue, however, 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). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. 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. 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2012). The factors of disability affecting joints are reduction of normal excursion of movements in different planes, and include consideration of weakened movement, excess fatigability, incoordination, swelling and pain on movement. 38 C.F.R. § 4.45 (2012). The Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). The criteria for evaluating disabilities of the spine are contained in a General Rating Formula for Diseases and Injuries of the Spine. The formula provides that 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, the following applicable ratings are assigned for disability of the thoracolumbar spine: A 20 percent rating is assigned 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 rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). 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 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. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2012). In addition to the General Rating Formula for Diseases and Injuries of the Spine, intervertebral disc syndrome may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 40 percent rating when incapacitating episodes have a total duration of at least four weeks but less than six weeks during the past twelve months. When incapacitating episodes have a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is assigned. Note (1) following 38 C.F.R. § 4.71a, Diagnostic Code 5242 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. Note (2) following 38 C.F.R. § 4.71a, Diagnostic Code 5242 provides that 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 results in a higher evaluation for that segment. Applicable Facts VA treatment records from 2009 forward show that the Veteran experienced low back pain. Treatment record from February 2010 shows that the Veteran experienced low back pain that made it difficult for him to rotate to cleanse himself. Pain also shot down his legs, and had worsened with time. He feared that his pain would stop him from walking. The examiner indicated that lumbar stenosis was suspected. March 2010 lumbosacral X-ray gave an impression of spondylosis and discogenic disease from L2-S1, worse at L4-5, with interval development of disease at L2-3. The Veteran was afforded a VA examination in June 2010 for his spine. The Veteran reported that his pain radiated up his back and down both his legs. He denied incontinence. The Veteran denied physician-directed bed rest or incapacitating episodes. He reported using Aspirin and Aleve for his pain, which occurred daily and lasted all day. He reported that he used a crutch and a cane. The Veteran reported that functionally he was unable to walk more than 15 minutes, unable to run, stand more than 20 minutes, sit more than 30 minutes, or lift more than 10 pounds. On examination the Veteran had normal sensation to light touch to the upper and lower extremities bilaterally. Range of motion testing revealed forward flexion from 0 to 40 degrees; extension from 0 to 20 degrees; left lateral flexion to 10 degrees; right lateral flexion to 20 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 20 degrees. Range of motion testing revealed the same results with pain present at the above degrees following three repetitions, and otherwise there was no additional DeLuca criteria, to include additional limitation of pain, fatigue, weakness, or lack of endurance. The examiner reviewed a March 2010 lumbar spine X-ray where impression was of spondylosis and discogenic disease from L2 to S1, worse at L4-5 with interval development of disease at L2-3. Examination otherwise revealed no painful motion, spasm, weakness, tenderness or abnormal curvatures or flattening. There was normal sensory and motor examination of the extremities, to include strength, sensation, tone and the absence of atrophy, except as specified above. In June 2010 the Veteran indicated that he experienced pain in his low back the entire time that he walked. August 2010 VA treatment record showed that the Veteran's gait was forward flexed at the hips with increased lordosis of the back, and his head and shoulders were forward. The Veteran reported low back aches, such that abdominal control and pelvic stability were stressed. A March 2012 VA treatment note shows that the Veteran was issued a back corset/orthotic for his chronic low back pain. In April 2012 the Veteran's representative indicated that there were severe limitations on the Veteran's walking and sitting. He emphasized that the Veteran used a crutch to walk, was limited to lifting ten pounds, had difficulty wiping after defecation, and experienced sciatica such that he should be considered for an extraschedular rating. Pursuant to a May 2012 VA remand, the Veteran was afforded a VA examination for his spine as recently as June 2012. At such examination his arthritis of the lumbar spine was evaluated, including a review of his history of back pain for many years beginning in service. The examiner indicated that the Veteran walked three miles a day in spite of constant pain, and was able to perform light yard work. Range of motion testing revealed forward flexion limited to 55 degrees, with painful motion. Extension was to 0 degrees with painful motion. Right and left lateral flexion were each to 20 degrees, with painful motion. Right lateral rotation was to 10 degrees; however, painful motion was evident at 5 degrees. Left lateral rotation was also to 10 degrees, with pain evident at 5 degrees. The Veteran was able to perform repetitive use testing with three repetitions, and there were no changes in post-test range of motion testing. Functional loss to include the inability to perform normal working movements with normal excursion, strength, speed, coordination and/or endurance was not evidenced by additional limitation in range of motion following repetitive use testing. There was, however, less movement than normal, weakened movement, pain on movement, disturbance of locomotion, and interference with sitting, standing and or weight bearing with repetitive use. There was localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. Specifically, there was mild right paraspinous tenderness at L3. Muscle strength testing, reflex examination, and sensory examination were all normal. Straight leg raising tests were negative. There was not radicular pain or any other signs or symptoms due to radiculopathy. There were no other neurologic abnormalities or findings related to a thoracolumbar spine condition. The Veteran did not have intervertebral disc syndrome or incapacitating episodes. The Veteran used a cane for ambulation and back brace that helped when he performed light yard work or walked. The examiner indicated that arthritis and degenerative disc disease had been identified by X-ray. Functional impact included ambulation limited to 3 miles with a cane and corset, ability to stand 15 minutes before pain occurred, sit 10 minutes without pain, and lift up to 20 pounds prior to pain began. In June 2012 the Veteran indicated that he had not sought private treatment for his back. He reported that he had used Aspirin, Naproxen, and Acetaminophen for his back. He indicated that prior to the VA giving him a lumbar corset, he had worn a commercial use back brace for prolonged standing, sitting or walking. Legal Analysis Upon careful review of the evidence as outlined above, the Board finds that the Veteran is not entitled to a rating in excess of 20 percent for his service-connected lumbar spine disability. During the relevant time frame, the Veteran's forward flexion of the lumbar spine, at its worst, was to 40 degrees with pain. This range of motion is consistent with the rating criteria for a 20 percent rating. There is no evidence of forward flexion of the thoracolumbar spine to 30 degrees or less, nor is there evidence of ankylosis to warrant a higher rating. The Board has considered the rating criteria related to IVDS and finds that the Veteran is not entitled to a rating in excess of 20 percent based upon incapacitating exacerbations. The evidence does not show that the Veteran had incapacitating episodes, including doctor prescribed bed rest, lasting at least 4 weeks to warrant a higher rating under the rating criteria for IVDS. Clinical records show that the Veteran had pain that with a forward flexed gait. The record does not reflect doctor-prescribed bed rest during the relevant period as required for an award of a higher rating for IVDS. The Board recognizes the Veteran's assertions of lumbar spine related pain, and he is certainly competent to so report. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Board is responsible for assessing the credibility of witnesses and, based on its observations of the Veteran's consistent testimony, considered with the other evidence of record, the Board finds that the Veteran is credible. Caluza v. Brown, 7 Vet. App. at 511. The Board has also considered whether the Veteran is entitled to a separate rating for radiculopathy or sciatica of the lower extremities. The Board finds that although the Veteran has reported some radiating pain in the lower extremities, the Veteran's sensory examinations of the lower extremities have been within normal limits. As such, a separate rating for radiculopathy or sciatica of the lower extremities is not warranted. The Board has considered whether to assign staged ratings, but finds them not appropriate under the circumstances. Extraschedular Consideration The symptoms presented by the Veteran's lumbar disability, to include pain and functional limitations are fully contemplated by the rating schedule. Thus, the Board finds no evidence warranting entitlement to referral for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). Further, although the Board has considered the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2011), the minimum requirement for a total disability rating has not been met. Here, the record does not suggest, and the Veteran does not contend that he is unable to maintain or sustain substantially gainful employment due to service-connected disabilities alone. 38 C.F.R. § 4.16 (2012). In conclusion, the evidence supports a disability rating of 20 percent, and no higher, for the Veteran's service-connected lumbar spine disability. As the preponderance of the evidence is against a rating of 40 percent, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER Entitlement to a rating in excess of 20 percent for lumbar spine disability is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs