Citation Nr: 1301403 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 07-22 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an initial rating in excess of 10 percent for service-connected thoracolumbar strain (back disability). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2002 to March 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified at a hearing at the RO before the undersigned in September 2008. The hearing transcript is of record. In February 2009, March 2010, and November 2010, the Board remanded this issue for further development and consideration by the agency of original jurisdiction (AOJ). The Veteran submitted additional medical records to the Board in August 2011, along with a waiver of review of such evidence by the AOJ. See 38 C.F.R. §§ 20.800, 20.1304(c) (2012). As discussed below, the case is now ready for adjudication on the merits, and no further remand is necessary. FINDINGS OF FACT Resolving all reasonable doubt in the Veteran's favor, throughout the period on appeal, her thoracolumbar strain has manifested by pain and painful motion, with forward flexion to greater than 30 degrees but less than 60 degrees when accounting for additional limitation due to increased pain during flare-ups; with no evidence of ankylosis or associated objective neurological manifestations. CONCLUSION OF LAW The criteria for an initial rating of 20 percent, but no higher, for thoracolumbar strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Where service connection has been granted and an initial rating and effective date have been assigned, the typical service connection claim has been proven. In such cases, the intended purpose of the VCAA notice has been fulfilled and no additional notice is required as to downstream issues, including the disability rating. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Here, the Veteran's claim arises from her disagreement with the initial rating assigned following the grant of service connection for thoracolumbar strain. She was notified in May 2006, prior to the initial rating decision, of the evidence and information necessary to establish service connection, as well as a disability rating and effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). She was again advised of the requirements for a disability rating in February 2007, after disputing the rating. Further, the Veteran has not alleged any prejudice from any possible notice defects as to the downstream element of the assigned rating. Additionally, the Veteran testified before the undersigned in September 2008. She discussed her symptoms and functional impairment, and the Veterans Law Judge asked questions in an attempt to substantiate the claim for a higher rating, to include whether her back disability had increased in severity since the last VA examination. The hearing focused on the elements necessary to substantiate the claim, and there is no indication or argument that any notification deficiencies resulted in prejudice or otherwise affected the essential fairness of the adjudication of the Veteran's claim. In particular, neither the Veteran nor her representative has argued that VA failed to comply with 38 C.F.R. 3.103(c)(2), or identified any prejudice as a result of the Board hearing. Rather, the Veteran has had ample opportunity to participate in the adjudication of her claim. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). VA has also substantially complied with the duties set forth in 38 C.F.R. 3.103(c)(2), consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010). With regard to the duty to assist, VA and private treatment records dated through 2011 have been obtained. The AOJ requested the Veteran to identify any pertinent outstanding treatment records several times, including in March 2009, as directed in the initial remand. No response was received at that time, but VA and private records were received before and after that time. The Veteran has also been afforded several VA examinations to determine the severity of her back disability, including in June 2006 and May 2009, in response to the initial remand directives. As directed in the last two Board remands, the Veteran was afforded a VA examination in November 2010 to determine whether her complaints of numbness, pain, etc. in the upper and lower extremities are related to her service-connected thoracolumbar strain. The examiner offered the requested opinion and a well-reasoned explanation after conducting appropriate testing, including MRIs, and considering all lay and medical evidence of record. There is no argument that the examinations or medical evidence of record are inadequate for a fair adjudication. As discussed below, the Veteran has complained of essentially the same symptoms throughout the period on appeal. Further, there is no argument or indication that her back disability has increased in severity since the last medical evidence. Although there may have been increased neurological symptoms in the extremities, these are not shown to be related to the back. The Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The paperless file includes a July 2012 rating decision and notice, which adjudicated several claims that are not currently on appeal, including a grant of service connection for fibromyalgia with a 40 percent initial rating, which will be discussed further below. All other pertinent records are also in the paper file. For the foregoing reasons, the Board finds that the AOJ complied with the prior remand instructions. Further, another remand would serve no useful purpose, as it would unnecessarily impose additional burdens on VA with no benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duties to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceedings. As such, the Veteran will not be prejudiced by a decision on the merits at this time. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated. Staged ratings must also be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-27 (1999). Here, the Veteran's service-connected thoracolumbar strain is currently rated as 10 percent disabling under Diagnostic Code (DC) 5237. Disabilities of the spine are addressed under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the condition is rated as intervertebral disc syndrome (IVDS) under DC 5243. See 38 C.F.R. § 4.71a. Here, there is no diagnosis of IVDS, nor is the Veteran service-connected for such disability. Under the General Rating Formula, the identified ratings are to be assigned with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of injury or disease. Id. A 10 percent rating will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees; or, 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. Id. A 20 percent evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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. Id. A 40 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine or the entire spine warrants a rating of 50 or 100 percent, respectively. Id. In addition, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic code(s). Id. at Note (1). When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for rating under diagnostic codes pertaining to limitation of motion. Pain may result in functional loss, however, if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in sections 4.40 and 4.45. Mitchell, 25 Vet. App. 32. In this case, throughout the appeal, the Veteran has complained of pain and painful motion of the middle and lower back, with frequent flare-ups resulting in increased pain. She also complains of intermittent radiating pain, numbness, and tingling in the upper and lower extremities, as well as weakness in the right side, which she believes is related to her service-connected back disability. For example, the Veteran testified during the September 2008 hearing that she misses work for at least a week every month because her legs "go out" and she cannot walk due to her back disability. She made similar complaints during VA examinations and for VA and private treatment purposes. The Veteran has also reported increased pain when lifting heavy objects (over 40 to 70 pounds) for her prior work as a mail carrier. The medical evidence of record confirms objective back pain and limitation of motion due to pain, as well as occasional muscle spasms and tenderness, although the Veteran maintained normal gait and spinal curvature. During the June 2006 VA examination, she complained of daily pain in the low back and intermittent pain in the middle back, with frequent flare-ups resulting in increased pain. Forward flexion was to 80 degrees, and combined range of motion was 230 degrees. There was objective pain during forward flexion and lateral rotation, and at the maximal 30 degrees of extension and bilateral lateral flexion. There was no additional loss of range of motion following repetition due to pain or other factors. The Veteran denied muscle spasms, and there were no palpable spasms upon physical examination, although there was objective tenderness to palpation. She maintained normal gait, with no assistive devices, and normal spinal curvature. A June 2007 private chiropractic record notes mild restriction of range of motion, with flexion to 50 degrees and right lateral flexion to 35 degrees. A May 2008 private record then notes that the Veteran had sought treatment since April 2008 when she had low back pain, and that trunk (or thoracolumbar spine) range of motion had been normal during most visits. Similarly, VA treatment records note unspecified degrees of mild to moderate loss of motion, including forward flexion, due to pain. See, e.g., January 2008 VA record (noting flexion and extension limited due to pain); January 2008 VA rehabilitation consult (noting moderate loss of flexion limited by pain, extension within normal limits, moderate loss with side bends, and mild loss with bilateral rotation); February 2008 VA record (functional range of motion within normal limits except mild loss with bilateral rotation). A January 2008 VA treatment record also notes to palpation of the spine, and the Veteran was advised to take ibuprofen as needed for pain and inflammation, as well as Flexeril as needed for muscle spasms. Gait remained within normal limits. During a May 2009 VA examination, the Veteran again reported constant low back pain with frequent flares resulting in increased pain. Forward flexion was measured to 70 degrees, and combined range of motion was 230 degrees. There was objective pain during forward flexion from 60 to 70 degrees, as well as during extension, and at the maximal bilateral rotation at 40 degrees. There was no additional loss of range of motion following repetition due to pain or other factors. There was again objective tenderness to palpation upon examination of the spine, although the Veteran maintained normal gait and normal spinal curvature. A November 2010 VA examination report reflects that the Veteran had no objective gait abnormality, and she was able to ambulate without assistive device, although she reported using a 4-wheeled walker for prolonged distances. Her primary complaints at that time were pain and numbness in the upper and lower extremities. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence establishes entitlement to a 20 percent rating, but no higher, for the back disability based on limitation of motion throughout the appeal. As summarized above, she has generally had forward flexion to greater than 60 degrees and combined range of motion of well over 120 degrees, which fall within the 10 percent schedular rating criteria. Nevertheless, the Veteran's forward flexion was limited to 50 degrees in June 2007, when she sought chiropractic treatment for an episode of increased back pain. This is consistent with her complaints of additional pain and functional impairment during frequent flare-ups before and after this date of treatment, as well as with the notations by medical providers of mild and moderate limitation of motion during episodes of pain. As such, pursuant to DeLuca and Mitchell, the evidence establishes entitlement to a 20 percent rating under the General Rating Formula. See 38 C.F.R. § 4.71a, DC 5237. The preponderance of the evidence does not, however, reflect forward flexion limited to 30 degrees or less, even with consideration of additional impairment due to pain or other factors during flare-ups or after repetitive use. Although there was objective evidence of pain throughout the range of forward flexion during the VA examinations, this does not constitute limited motion at that level so as to warrant higher rating. Rather, the Veteran continued to maintain function after that time, and up to and up to 70 or 80 degrees of forward flexion. See Mitchell, 25 Vet. App. 32. This is consistent with the express contemplation of range of motion with pain, whether or not it radiates, as well as stiffness and aching in the spine, in the General Rating Formula. See 38 C.F.R. § 4.71a, DC 5237. There is also no evidence of ankylosis, either favorable or unfavorable, of the spine. As such, a rating in excess of 20 percent is not warranted for any period. See id., General Rating Formula. The Board has considered whether a separate rating is warranted for neurological impairment associated with the service-connected back disability. See id. at Note (1). In this regard, there is no argument or indication of related bowel or bladder impairment. Rather, the Veteran has complained of radiating pain, numbness and tingling in the lower extremities, as well as numbness and tingling in the upper extremities. There is also evidence of objective impairment, including decreased reflexes and decreased sensation to pinprick, as well as occasional tenderness in the extremities. See, e.g., June 2006, May 2009, and November 2010 VA examination reports; March 2008 private record; May and July 2009 VA treatment records. These symptoms, however, have not been objectively linked to the Veteran's back disability. Although the Veteran believes that her pain, numbness, etc. in the upper and lower extremities are related to her back disability, she is not competent as a lay witness to provide an opinion in this regard. Rather, this question requires specialized knowledge, training, or experience due to the complex nature of the spine and the involved neurological system. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Repeated x-rays and MRIs of the thoracic and lumbosacral spine have been interpreted as normal, unremarkable, or with no significant abnormality. See x-ray reports dated in June 2006, January 2008, and May 2009; MRI reports dated in February 2008 and July 2010. Further, the diagnosis or impression has continued to be thoracolumbar strain throughout the appeal. Significantly, the November 2010 VA neurological examiner opined that the Veteran's neurological symptoms in the upper and lower extremities are less likely as not caused by or the result of the service-connected thoracolumbar strain (or cervical strain), and there was no obvious evidence of radiculopathy or neuropathic process. This opinion was based on review of the medical evidence of record, including MRI results, as well as examination and interview of the Veteran. There is no contrary medical opinion. For the foregoing reasons, the preponderance of the evidence is against a finding that any neurological symptomatology is associated with the service-connected back disability. Moreover, the Veteran has been granted service connection for fibromyalgia with a 40 percent rating based on symptoms including paresthesias and musculoskeletal pain above and below the waist, and affecting the middle and low back as well as the upper and lower extremities. Therefore, her neurological complaints are contemplated by the now service-connected fibromyalgia. In summary, the lay and medical evidence of record supports an initial rating of 20 percent, but no higher, for the Veteran's service-connected thoracolumbar strain. All possibly applicable diagnostic codes have been considered in coming to this conclusion. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Further, a staged rating is not appropriate, as the Veteran's symptoms were relatively stable, and any increases in severity did not rise to the level to warrant a higher rating, for the reasons discussed above. See Fenderson, 12 Vet. App. at 126-27. The Board has also considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). An extra-schedular rating is warranted if a case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that it would be impracticable to apply the schedular standards. Analysis under this provision involves a three-step inquiry, and extra-schedular referral is necessary only if analysis under the first two steps reveals that the rating schedule is inadequate to evaluate the claimant's disability picture and that such picture exhibits such related factors as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Here, the manifestations of the Veteran's back disability are fully contemplated by the schedular rating criteria. Briefly, such disability manifested by pain and painful motion. Symptoms in the extremities were not medically linked to the back disability, and they are also contemplated under the now service-connected fibromyalgia. Therefore, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and the rating schedule is adequate to evaluate her disability picture. It is unnecessary to discuss the second prong, i.e., whether there are related factors such as marked interference with employment or frequent periods of hospitalization. See id. Moreover, there have been no hospitalizations for the back during the course of the appeal. Although the Veteran's back disability negatively affected her prior work as a mail carrier, this did not rise to the level of marked interference. Rather, the time lost is contemplated under the assigned schedular rating, which is intended to account for considerable interference with employment. See 38 C.F.R. § 4.1. As such, no referral for consideration of an extra-schedular rating is necessary. See Thun, 22 Vet. App. at 115-16. The Board has considered whether entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this regard, the Board notes that the Veteran called the RO in June 2009 to advise that she wanted to file for unemployability. She stated that she had been fired due to unspecified disability and had gotten her job back, but she expected that she may be fired again. In support of this assertion, she submitted a May 2009 statement from her employer reflecting emergency placement in off-duty status due to safety concerns. In a June 2009 VA examination, the Veteran reported being placed in off-duty status or laid off in May 2009 because she had an accident in a company vehicle, and that she had been working full time prior to that incident. In a July 2012 rating decision, the Veteran was granted 100 percent schedular rating for major depressive disorder with posttraumatic stress disorder effective as of March 27, 2009. Entitlement to a TDIU is an alternative avenue to a 100 percent rating where the Veteran is not entitled to 100 percent schedular rating. As such, the question of a TDIU became moot from March 27, 2009, forward. There is also no assertion or indication that the Veteran was unemployable due to service-connected disability, to include the back disability, prior to March 27, 2009. Accordingly, entitlement to a TDIU need not be addressed further at this time. The Veteran's claim has been granted to the extent discussed above based, in part, on the benefit of the doubt doctrine. However, the preponderance of the evidence is against a rating in excess of 20 percent for thoracolumbar strain, or a separate rating for neurological manifestations. As such, the benefit of the doubt doctrine does not apply, and the Veteran's claim must be denied in this regard. 38 C.F.R. § 4.3. ORDER An initial rating of 20 percent for thoracolumbar strain is granted, subject to the controlling laws and regulations as to monetary payment. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs