Citation Nr: 1301223 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 12-22 015 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating in excess of 10 percent for thoracolumbar spine myofascial syndrome ("a back disability"). ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from July 2005 to June 2010. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also her file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran has not been prescribed bed rest to treat her service-connected back disability at any time during the course of her appeal. 2. Even considering functional limitation caused by pain, weakness, stiffness, fatigability, and lack of endurance, etc., the Veteran consistently demonstrated forward flexion in her back that greatly exceeded 60 degrees and combined range of motion of the thoracolumbar spine that greatly exceeded 120 degrees. 3. The evidence of record fails to show that the Veteran has experienced muscle spasm or guarding that was severe enough to result in an abnormal gait or abnormal spinal contour. 4. A neurologic impairment, secondary to the Veteran's back condition, has not been diagnosed based on objective testing. CONCLUSION OF LAW Criteria for a rating in excess of 10 percent for thoracolumbar spine myofascial syndrome have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court noted a distinction between an appeal involving the veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where entitlement to compensation already has 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). However, where, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson, 12 Vet. App. at 126. The regulations provide that back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes with a total duration of at least 1 week, but less than 2 weeks, during the past 12 months; a 20 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes with a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months; a 40 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months; and a 60 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes having a total duration of at least 6 weeks, during the past 12 months. 38 C.F.R. § 4.71a, DC 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. Id., Note (1). The Veteran has stated that she experiences flare-ups of pain approximately twice a week which she treats with self-imposed bed rest. However, there is no suggestion that she has actually been prescribed bed rest by a physician to treat incapacitating episodes of IVDS at any time during the course of her appeal as specifically and explicitly required by the regulations. As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran's lower back disability under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for a lower back disability when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or when there is vertebral body fracture with loss of 50 percent or more of the height. The next higher rating of 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when 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 assigned when forward flexion of the thoracolumbar spine is 30 degrees or less; and a rating in excess of 40 percent is not available unless either ankylosis or a fractured spine is present. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. In this case, the Veteran contends the records of treatment she received for her back were not adequately reviewed before her June 2011 rating decision. The Veteran's service treatment records were reviewed by the Board and do show the Veteran received treatment for back pain following an accident in which a humvee rolled-over. However, service treatment records did not reveal any range of motion testing of the Veteran's back. Furthermore, an x-ray of the Veteran's back shortly before she separated from service revealed normal spine with no degenerative changes. As such, service treatment records do not establish the Veteran is entitled to a rating in excess of 10 percent. Moreover, because service connection has already been granted, the focus of this decision is on the degree of impairment of the Veteran's spine during the course of her appeal which began the day after she separated from service. Therefore, while service treatment records were reviewed they do not actually address the condition of the Veteran's back during the course of her appeal. The critical question is how her back disability impact her today, not during her military service, but the Board has reviewed all records. In this case the Veteran was provided a VA examination in March 2011 at which she complained of pain from approximately the T6 to L5 region of her back at a level of 7/10. The Veteran denied radiation of pain, numbness, or tingling, but did report stiffness. She also reported clicking and popping that was occasionally painful. The Veteran did not use braces or other orthopedic devices and reported her activities of daily living were not affected, though she did experience pain during them. The examiner noted normal gait and negative straight leg raise both sitting and supine. The examiner further noted the alleged the area in question was not tender to palpation. Range of motion testing showed forward flexion to 90 degrees, with pain at 90 degrees; extension to 20 degrees with pain at 20 degrees; rotation to 30 degrees bilaterally; and lateral flexion to 30 degrees bilaterally. The examiner noted the Veteran did not exhibit additional loss due to pain, fatigue, or weakness. Veteran did complain of mildly increased pain on repetitive motion. Review of the record does not reveal that the Veteran has sought treatment for her back since separation from service, and she has not alleged that her back disability increased since the examination. As such, the March 2011 examination provides the best evidence of her current back disability and will be used to evaluate the Veteran's condition under the rating criteria. A rating in excess of 10 percent can be assigned based on limitation of motion. However, forward flexion must not be greater than 60 degrees or combined range of motion of the thoracolumbar spine must not be more than 120 degrees. As described above, the Veteran has not even approximately demonstrated such limitation of motion. At her examination she demonstrated near full range of motion, with forward flexion to 90 degrees and a combined range of motion of the thoracolumbar spine of 230 degrees. As such, the medical evidence of record simply does not show that a rating in excess of 10 percent based on limitation of motion is warranted. In reaching this conclusion, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In this case, the examiner specifically noted the Veteran did not exhibit any additional loss in range of motion due to pain or fatigue. Some additional pain was seen on repetitive motion, but this pain was not shown to cause any functional limitation, which is relevant, since for VA purposes, pain alone is not considered to be sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; See 38 C.F.R. § 4.40. In this case, the evidence does not show that the Veteran has experienced functional limitation from factors such as pain. The Veteran demonstrated 90 degrees of forward flexion of her spine, and only experienced pain at the end of the range of motion. Therefore, she was able to move without pain through the whole range of motion contemplated by a 20 percent rating. As such, the evidence does not show the Veteran had experienced functional limitation from factors such as pain that would support a rating in excess of 10 percent, which takes into consideration the Veteran's complaints of pain. Without taking into consideration these complaints, there would be no objective basis to award the Veteran a compensable evaluation, let alone a 10 percent evaluation. A rating in excess of 10 percent may also be assigned when there is muscle spasm or guarding that is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. However, the evidence of record does not show such impairment. The examiner found the Veteran to have a normal gait and noted her spine still retains normal structure. Therefore a higher rating is not warranted on this basis. As noted, the evidence of record also fails to show ankylosis or a fractured spine. The regulations also provide that any neurologic impairment should be rated separately and then combined with the orthopedic rating. However, in her examination the Veteran specifically denied experiencing many neurological impairments, including radiation of pain, numbness or tingling, unsteadiness or locking, bowel or bladder changes, and urinary or fecal incontinence. The examination revealed negative straight leg raises and noted sensation was intact. Additionally no specific neurologic disability was diagnosed by the examiner. Therefore the evidence does not establish the Veteran had a neurologic abnormality and as such a separate rating based on neurologic impairment is not warranted. As described, the schedular rating criteria for a rating in excess of 10 percent for a back disability have not been met, and the Veteran's claim is therefore denied. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's back disability that would render the schedular criteria inadequate. The Veteran's main symptom is pain, which is contemplated in the rating assigned. As such, the Board believes that the schedular rating criteria adequately describe the Veteran's disability picture and referral for consideration of an extraschedular rating is not warranted. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Although the Board acknowledges that the Veteran is not currently employed (as she is a full-time student), there is no suggestion that her back condition would interfere with her ability to work. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due to the Veteran's service connected back disability. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the Veteran's claim for service connection for her back disability was granted. She then appealed the downstream issue of the rating that had been assigned. Under these circumstances, since the original claim was granted, there are no further notice requirements under the aforementioned law with regard to that issue. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records have been obtained, as have service treatment records. The Board notes in her July 2011 notice of disagreement the Veteran suggests she had seen a chiropractor for her back condition. The Veteran's service treatment records contain treatment records from a chiropractor who treated her in service, but the Veteran has not specifically alleged receiving any chiropractic treatment since separation from service. The Board, therefore, finds no need to remand the case in search of records which may or may not exist. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (finding the duty to assist is not a one-way street). Finally, the Veteran was offered the opportunity to testify at a hearing before the Board, but she declined. The Veteran was also provided with a VA examination (the report of which has been associated with the claims file). The Board finds the VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from her, and provided the information necessary to evaluate her disability. Furthermore, the Veteran has not voiced any issue with the adequacy of the examination. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Entitlement to a rating in excess of 10 percent for a back disability is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs