Citation Nr: 1301931	
Decision Date: 01/17/13    Archive Date: 01/23/13

DOCKET NO.  11-05 420A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUES

1.  Entitlement to a higher initial rating for service-connected degenerative disc disease (DDD) and arthritic changes of the lumbosacral spine, evaluated as 20 percent disabling prior to October 22, 2003, and as 40 percent disabling therefrom.  

2.  Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability.


REPRESENTATION

Veteran represented by:	Paralyzed Veterans of America, Inc.


ATTORNEY FOR THE BOARD

Michael Wilson, Associate Counsel


INTRODUCTION

The Veteran served in the Philippine Guerilla and Combination Service from September 1942 to June 1946.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington, DC, which, in relevant part, granted service connection for the Veteran's lumbosacral spine disability and assigned a 20 percent disability rating, effective April 24, 1989, and a 40 percent disability rating, effective October 22, 2003.  The VA Regional Office (RO) in Manila, the Republic of the Philippines, now has original jurisdiction over the Veteran's claims. 

In his March 2011 substantive appeal (on VA Form 9), the Veteran requested a hearing before a Veteran's Law Judge (VLJ) at his local VA office.  However, in November 2012, before he could be scheduled for a hearing, his representative noted that the Veteran had been found to be incompetent and would not be able to appear for a hearing.  Therefore that his hearing request was withdrawn.  Therefore, the Board considers the request for a hearing before a Board VLJ to be withdrawn.  See 38 C.F.R. § 20.704(e) (2012).

The Board notes that multiple TDIU claims have been denied by various RO and Board decisions.  Most recently, the Board denied a claim for a TDIU in an April 2010 decision.  Nonetheless, since that claim was denied, service connection was awarded for the Veteran's lumbosacral spine disability.  Additionally, in a November 2012 statement, the Veteran's representative contended that the Veteran's service-connected lumbosacral spine disability significantly contributed to his unemployability.  Thus, the issue of entitlement to a TDIU has again been raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  

The issues of whether new and material evidence has been received to reopen previously denied claims of entitlement to service connection for anemia, for an abscess on the posterior side of the head, and for nutritional deficiency were raised by the record, but appear to have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  See August 1998 statement and August 2002 deferred rating decision.  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

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).

The issues of entitlement to a disability rating in excess of 40 percent for service-connected DDD and arthritic changes of the lumbosacral spine, as of October 22, 2003, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, DC.  VA will notify the Veteran if further action is required on his part.

FINDINGS OF FACT

Prior to October 22, 2003, the severity of the Veteran's DDD and arthritic changes of the lumbosacral spine was primarily manifested by a limitation of flexion of, at most, 60 degrees, muscle spasms resulting in abnormal spinal contour, and symptoms of osteoarthritis.  There was no ankylosis, severe limitation of motion, incapacitating episodes of intervertebral disc syndrome, or neurological manifestations.



CONCLUSIONS OF LAW

1.  The criteria for an initial disability rating in excess of 20 percent for service-connected DDD and arthritic changes of the lumbosacral spine, prior to October 22, 2003, have not been met under the criteria for rating limitation of motion and a lumbosacral strain in effect prior to September 2003.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5289, 5295 (2002).

2.  The criteria for an initial disability rating in excess of 20 percent for service-connected DDD and arthritic changes of the lumbosacral spine, prior to October 22, 2003, have not been met under the criteria for rating intervertebral disc syndrome.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5293(as in effect prior to September 23, 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (as in effect from September 23, 2002, to September 26, 2003).

3.  The criteria for an initial disability rating in excess of 20 percent for service-connected DDD and arthritic changes of the lumbosacral spine, prior to October 22, 2003, have not been met under the General Rating Formula for Diseases and Injuries of the Spine.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5242, 5243 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

I.  Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The Veteran's claim of entitlement to increased ratings for his service-connected lumbosacral spine disability arises from an appeal of the initial evaluation following the grant of service connection.  Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is needed under VCAA.

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  Here, the RO has obtained the Veteran's identified private treatment records, his VA treatment records, and has provided him with multiple VA examinations.  The Board acknowledges that the Veteran's most recent, September 2010 VA spine examination may not accurately describe the current severity of his lumbosacral spine disability, and to that extent is remanding that portion of his claim, currently evaluated as 40 percent disabling as of October 22, 2003, for further development.  As specifically regarding the earlier stage of his claim, through October, 21, 2003, however, the Board finds that the evidence of record, including earlier VA examination reports, adequately describes the severity of his disability through that time period.

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).  For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II.  Increased Disability Rating

      A.  Governing Law and Regulations
      
Disability ratings are based on the average impairment of earning capacity resulting from a disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10 (2012).  Separate diagnostic codes identify the various disabilities.  

Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating.  38 C.F.R. § 4.7 (2012).  Otherwise, the lower rating will be assigned.  Id.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21 (2012). 

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  See 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012).  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present.  See 38 C.F.R. §§ 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991).

In Fenderson v. West, 12 Vet. App 119 (1999), the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case, such as this one, where a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected.  In these cases, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating."  See also Hart v. Mansfield, 21 Vet. App 505 (2007).  

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed.  See 38 C.F.R. § 4.14 (2012).  A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity."  See 38 U.S.C.A. § 1155 (West 2002); Brady v. Brown, 4 Vet. App. 203, 206 (1993).  This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.  However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes.  See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).

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, and the diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

The Veteran bears the burden of presenting and supporting his claims for benefits.  38 U.S.C.A. § 5107(a) (West 2002).  In its evaluation, the Board considers all information and lay and medical evidence of record.  38 U.S.C.A. § 5107(b) (West 2002).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant.  Id.

      B.  Analysis

During the pendency of the Veteran's appeal, the criteria for evaluating spine disabilities have been substantially revised.  These revisions took place in two phases.

Prior to September 26, 2003, favorable ankylosis of the lumbar spine warranted a 40 percent disability rating, and unfavorable ankylosis warranted a 50 percent disability rating under Diagnostic Code 5289.  38 C.F.R. § 4.71a, DC 5289 (2002).

Under Diagnostic Code 5292, slight limitation of motion warranted a 10 percent disability rating, moderate limitation of lumbar motion warranted a 20 percent disability rating, and a 40 percent disability rating was assigned for severe limitation of lumbar motion.  38 C.F.R. § 4.71a, DC 5292 (2002).

Under Diagnostic Code 5295, a lumbosacral strain with only slight subjected symptoms only warranted a zero percent (noncompensable) disability rating.  A lumbosacral strain with characteristic pain on motion warranted a 10 percent disability rating.  A lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position, warranted a 20 percent disability rating.  A severe lumbosacral strain with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion warranted a 40 percent disability rating.  38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002).

For the period through September 22, 2002, under 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002), the criteria for rating intervertebral disc syndrome, a 10 percent evaluation was warranted for mild intervertebral disc syndrome.  A 20 percent evaluation was in order for moderate intervertebral disc syndrome, with recurring attacks.  A 40 percent evaluation contemplated severe intervertebral disc syndrome, characterized by recurrent attacks with intermittent relief.  A 60 percent evaluation was warranted for pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief.  

Effective from September 23, 2002, VA amended the rating schedule for evaluating intervertebral disc syndrome set out in Diagnostic Code 5293.  See 67 Fed. Reg. 54345-54349 (2002); now codified at 38 C.F.R. § 4.71a.  Under these rating criteria (renumbered as Diagnostic Code 5243 after September 2003) the evaluation of intervertebral disc syndrome (preoperatively or postoperatively) is to be made either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25, separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation.  

When rating based on incapacitating episodes, if there are incapacitating episodes having a total duration of at least one week but less than two week during the past 12 months, a minimum 10 percent rating is warranted.  If there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is warranted.  If there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is warranted.  If there are incapacitating episodes having a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is warranted.  

Note 1 to 38 C.F.R. § 4.71a, Diagnostic Code 5293 (now Diagnostic Code 5243), effective September 23, 2002, 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.  "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so.

Note 2 to 38 C.F.R. § 4.71a, Diagnostic Code 5293 (now Diagnostic Code 5243), effective September 23, 2002, provides that when rating on the basis of chronic manifestations, the orthopedic disabilities will be rated under the most appropriate orthopedic diagnostic code or codes and the evaluation of neurologic disabilities will be done separately using the most appropriate neurologic diagnostic code or codes.

Finally, effective September 26, 2003, additional substantive changes were made to all criteria for evaluating spine disabilities.  These later revisions provide a new General Rating Formula for Diseases and Injuries of the Spine encompassing such disabling symptoms as pain, ankylosis, limitation of motion, muscle spasm, and tenderness.  Additionally, associated neurological abnormalities (e.g., bowel or bladder impairment) are now for evaluation separately.  These changes are listed under Diagnostic Codes 5235-5243.  

Under these new regulations, intervertebral disc syndrome (IVDS), renumbered as Diagnostic Code 5243, may be evaluated under this new general rating formula after September 2003 or under the rating criteria for incapacitating episodes made effective September 23, 2002, as set forth above, if the claim was pending at the time the regulations were amended.

The new General Rating Formula for Diseases and Injuries of the Spine, effective September 26, 2003, 38 C.F.R. § 4.71a , 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 the residuals of injury or disease:

A 10 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine greater that 60 degrees but not greater that 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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;

A 20 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine greater that 30 degrees but not greater that 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 evaluation is warranted where there is forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine;

A 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine; 

A 100 percent evaluation is warranted where there is unfavorable ankylosis of the entire spine.

For VA compensation purposes, the "combined range of motion" refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation.

Note (2) to the general rating formula provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees; normal combined range of motion of the cervical spine is 340 degrees.  Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees; the normal combined range of motion of the thoracolumbar spine is 240 degrees.

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment.  The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain.  Such inquiry is not to be limited to muscles or nerves.  These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2002).

Although § 4.40 does not require a separate rating for pain, it does provide guidance for determining ratings under other diagnostic codes assessing musculoskeletal function.  Painful motion is an important factor of disability, and it is the intention of the Rating Schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  See 38 C.F.R. § 4.59 (2002); Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. 4.59 is not just limited to arthritis).  Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  

Pursuant to § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in.  See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).

A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran.  38 C.F.R. § 4.40 (2002); Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  Moreover, although pain may cause a functional loss, pain itself does not constitute functional loss that would warrant a rating above the minimal compensable level.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  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 38; see 38 C.F.R. § 4.40 (2002).

The Veteran is currently assigned a 20 percent disability rating for his service-connected lumbosacral spine disability for the period prior to October 22, 2003.  Per the June 2009 rating decision, this rating assignment was primarily based on evidence of muscle spasm and evidence approximating to moderate limitation of motion of the lumbar spine.  

In reviewing the record, the Board observes that the first contemporary evidence describing the severity of the Veteran's service-connected lumbosacral spine disability is found in a private treatment report from the Veteran's private physician, Dr. Honesto Ruiz, dated in November 1989.  The reported indicated that the Veteran had chronic arthritis of the lumbar region.  In multiple VA and private treatment records dated since that time, the Veteran has been repeatedly noted to suffer from degenerative arthritis and osteoarthritis of his lumbar spine region.  

During a June 1994 VA examination, the Veteran was noted to have slight tenderness to palpation in the lumbosacral region, with no other significant abnormalities.  

In a July 1994 VA treatment report, the Veteran reported a lengthy history of low back pain.  He was noted to have scoliosis of the lumbosacral spine, paraspinal spasms, and tenderness of both sacroiliac joints.  He additionally reported weakness of his hip muscles.  Although the report shows results of range of motion testing, much of the information is unclear.  It appears, however, that the Veteran had normal flexion to 90 degrees, but that lateral flexion may have been limited to 20 degrees.  X-rays showed DDD, degenerative joint disease (DJD), and spondylolisthesis of the facet joints.  A review of the July 1994 X-ray report showed an impression of mild to moderate DDD at L1-2, L4-5, and L5-S1; minimal levoscoliosis, and spondylolisthesis at L4-5 and L5-S1, with mild facet joint arthritis.  

During an April 1995 VA orthopedic examination, the Veteran was noted to have lower back muscle spasms, tenderness, and pressure.  Flexion was normal at 90 degrees, and extension was also normal at 30 degrees.  Right and left lateral bending and right and left lateral rotation were all measured at 40 degrees, exceeding normal limits.  X-rays showed a minor scoliotic curve with the apex of L3 to the right 25 degrees and multiple discogenic disease L2 to S1.  The diagnosis included arthritic spondylosis of the lumbar spine area with a minor scoliotic curve.  An April 1995 X-ray report showed an impression of no interval change from the July 1994 X-rays-diffuse degenerative spondylosis with DDD at L1-2, L4-5, and most severe at L5-S1.  Moderate osteoporosis was also seen.

The Veteran was afforded another VA examination in September 2001.  At that time, he indicated that he had pain in his lower back region.  He experienced flare-ups of arthritis intermittently that could last for days.  He reported having weakness, stiffness, swelling, inflammation, fatigue, and lack of endurance.  He also experienced aches and stiffness in his buttock region.  Examination of the lumbar spine revealed muscle tenderness in the midline vertebral processes.  No muscle spasm or weakness was noted.  Range of motion testing revealed flexion limited to 60 degrees and extension limited to 20 degrees.  Right and left lateral flexion were to 40 degrees, and right and left lateral rotation were to 35 degrees.  The examiner diagnosed degenerative arthritis of the lumbar spine, with DDD at L5-S1.  

The Veteran was most recently afforded a VA examination in October 2003.  At that time, the Veteran could not distinguish his back pain from hip pain.  In fact, he somewhat denied hip pain and pointed, rather, to his lower back.  On examination, the lumbar spine appeared normal.  Tenderness was noted in the lower lumbar region on palpation.  Straight-leg raising tests were negative at 90 degrees.  Range of motion reduced, with pain at the extremes of motion.  His range of motion was limited by pain, but not by fatigue, weakness, lack of endurance, or incoordination.  Range of motion testing results revealed flexion limited to 80 degrees, with pain at the extreme of the motion, extension limited to 15 degrees, with pain at the extreme of the motion, right and left lateral flexion each limited to 20 degrees with pain at the extreme of each motion, and right and left lateral rotation each limited to 25 degrees, with pain at the extreme of each motion.  Neurological examination revealed normal reflexes, sensations, and motor strength.  X-rays of his lumbar spine revealed DDD of the lower lumbar spine, specifically narrowing of the L4-5 and L5-S1 intervertebral disc spaces; and alteration of alignment, consistent with skeletal muscle spasm.  

Based on the foregoing medical evidence of record, the Board finds that the Veteran is not entitled to a disability rating higher than his currently assigned 20 percent disability rating at any point prior to October 22, 2003.  In evaluating the severity of the Veteran's service-connected lumbosacral spine disability, the Board has considered all applicable rating criteria both prior to and after relevant amendments to the pertinent VA regulations.  

Considering first the rating criteria for lumbosacral strain under Diagnostic Code 5295, while the Veteran has been noted to have muscle spasms and resulting alteration of his spinal alignment (e.g. scoliosis), his loss of motion has been minimal.  He has, at most, only been found to have a limitation of flexion to 60 degrees.  He has at no point been found to have listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending, loss of lateral motion.  Moreover, while he has been shown to have osteoarthritis and joint space narrowing, these are essentially the only symptoms that would merit consideration of the criteria for a higher 40 percent disability rating.  The Board similarly finds that even with a showing of disc space narrowing, the Veteran does not reach the required description of having some of the 40 percent criteria accompanied by abnormal mobility on forced motion.  As such, Diagnostic Code 5295 does not enable an increased rating here.

Next, considering the criteria for limitation of lumbar motion under Diagnostic Code 5289, the Veteran only has a limitation of flexion of 60 degrees.  However, this showing of limitation of motion, together with noted muscle spasms, is sufficient to demonstrate a moderate degree of limitation of lumbar spine motion, consistent with his current 20 percent disability rating.  He has at no point, however, been shown to have signs or symptoms indicative of a severe limitation of lumbar spine motion.  In so finding, the Board has considered the Veteran's reports of pain, as well as the objective evidence of pain.  However, such pain has not been shown to result in additional functional loss more nearly approximating severe limitation of motion.

Similarly, in considering the earlier criteria for rating IVDS under Diagnostic Code 5293, there is no indication in the record that the Veteran suffered from attacks of IVDS with intermittent relief.  While muscle spasms have been noted, he does not have any other symptoms of pronounced IVDS, namely, persistent symptoms compatible with sciatic neuropathy with characteristic pain, absent ankle jerk, or other neurological findings.  The October 2003 VA examiner specifically noted negative findings pertaining to any associated neurological disability.  Although the results of the October 2003 VA examination largely involve the evaluation of the Veteran's service-connected lumbosacral spine disability from October 2003 forward, the Board finds that the symptoms present at the time of that examination help to elaborate symptoms noted earlier in the record.

Considering next the criteria for IVDS in effect as of September 23, 2002, the Veteran has at no point been noted to have suffered from incapacitating episodes of IVDS as contemplated by the regulations.  Additionally, as noted, he has not been shown to have neurological manifestations associated with his service-connected lumbosacral spine disability.

In considering the rating criteria in effect as of September 26, 2003, the Board finds that the Veteran's symptoms are consistent with the 20 percent disability rating as described under the General Rating Formula for Diseases and Injuries of the Spine.  Specifically, he has been shown to have a limitation of forward flexion to 60 degrees and he has been shown to have abnormal spinal contour as a result of skeletal muscle spasms, all as described under the criteria for a 20 percent disability rating.  He has not however, been shown to have forward flexion limited to 30 degrees as would be required for the next higher 40 percent disability rating, the highest available rating available based on limitation of motion, absent a showing of ankylosis.

Similarly, at no point during the relevant appellate period has the Veteran been noted to have ankylosis of the thoracolumbar spine, thus the criteria for rating ankylosis are not applicable.  To the extent that ankylosis is later shown, this is addressed in the remand portion of this decision.  

As noted previously, the Board has considered whether any higher evaluation may be warranted on the basis of functional loss due to pain, weakness, fatigability, or incoordination based on any results for range of motion testing during the appellate period.  See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca, 8 Vet. App. at 204-7.  Here, however, while the Veteran has been noted to have some pain at the extremes of his range of motion, he has never been noted to have painful motion or any limitation of motion or functional limitation based on pain.  He has similarly not been found to have any other limitation of function during the relevant appellate period.  Consequently, the Board finds that a higher evaluation based on functional loss is not applicable in this case. 

As provided in DC 5242, the Board has considered whether an additional rating is available based on degenerative arthritis of the spine under DC 5003, however, such is not warranted in this case.  Indeed, the Board finds that to grant such an additional rating would violate the law against pyramiding, which specifically states that the evaluation of the same manifestations under various diagnoses is to be avoided.  See 38 C.F.R. § 4.14 (2012).  Here, the arthritis code directs that the disability be rated based on the particular limitation of motion codes.  If the disability does not warrant a compensable rating under those codes, only then is a rating solely for arthritis appropriate.  As explained above, the Veteran's limitation of motion has been found to be compensable at the 20 percent and 40 percent ratings throughout the course of his appeal.  Therefore, a separate rating based on arthritis is not warranted.

In addition to considering the orthopedic manifestations of a back disability, VA regulations from September 23, 2002, onward also require that consideration be given to any objective neurologic abnormalities associated with the back disability, including, but not limited to, bowel or bladder impairment.  Such manifestations are to be evaluated separately under an appropriate diagnostic code.  In this case, the Veteran has not at any point been shown to suffer from any neurological manifestations associated with his service-connected lumbosacral spine disability.  Accordingly, any separate rating for an associated neurological disability is not warranted in this case.  

In determining whether a higher rating is warranted for a service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C.A. § 5107(a) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  In this case, a preponderance of the evidence is against the Veteran's claim that he is entitled to an increased disability rating for his service-connected lumbosacral spine disability prior to October 22, 2003.  Therefore, his claim for a disability rating higher than 20 percent for his service-connected DDD and arthritic changes of the lumbosacral spine for the period prior to October 22, 2003, must be denied.

      C.  Extraschedular Consideration 

The rating schedule represents as far as is practicable, the average impairment of earning capacity.  Ratings will generally be based on average impairment.  See 38 C.F.R. § 3.321(a), (b) (2012).  In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321 (2012).  

The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

The symptoms associated with the Veteran's service-connected lumbosacral spine disability (i.e., DDD and DJD, reduced range of motion, muscle spasms with resulting abnormal spinal contour) are not shown to cause any impairment that is not already contemplated by the rating criteria set forth above, and the Board finds that the applied rating criteria reasonably describe this service-connected disability.  The applied rating criteria are, therefore, adequate to evaluate the Veteran's lumbosacral spine disability and referral for consideration of an extraschedular rating is not warranted in this case.


ORDER

Entitlement to an initial disability rating in excess of 20 percent for DDD and arthritic changes of the lumbosacral spine for the period prior to October 22, 2003, is denied.


REMAND

The Veteran's remaining claims on appeal are those of entitlement to disability rating higher than 40 percent for service-connected DDD and arthritic changes of the lumbosacral spine as of October 22, 2003, and entitlement to a TDIU.  Unfortunately, a remand is required with respect to these issues.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide these claims so that the Veteran is afforded every possible consideration.

The Veteran was afforded his most recent VA examination to assess the severity of his service-connected lumbosacral spine disability in September 2010.  During the examination, it was noted that the Veteran had ankylosis of the thoracolumbar spine.  While the examiner indicated that the Veteran had signs of unfavorable ankylosis, he did not clearly identify whether his ankylosis was favorable or unfavorable.  Additionally, the examiner determined that the Veteran had flexion from zero to 30 degrees, which would appear to negate a finding of ankylosis.  Where a higher rating under the General Rating Formal for Diseases and Injuries of the Spine may specifically depend on a finding of favorable or unfavorable ankylosis, additional medical comment is needed to fully and accurately describe any ankylosis of any spinal segment (i.e. entire thoracolumbar spine) found to be present.

Additionally, as a result of the Board's finding that a claim of entitlement to a TDIU has been raised by the evidence of record, the VA examiner commenting on the severity of the Veteran's lumbar spine disability should additionally provide an opinion as to whether the Veteran's service-connected disabilities, combined, render him unable to secure or follow substantially gainful employment.  See Rice, 22. Vet. App. at 453-54.  

The RO/AMC should also provide the Veteran with a VCAA notice letter for his TDIU claim.  This letter should notify the Veteran of any information or lay or medical evidence not previously provided that is necessary to substantiate the TDIU claim.  The notice should also indicate what information or evidence should be provided by the Veteran and what information or evidence VA will attempt to obtain on the Veteran's behalf.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).  

Finally, any recent records of VA or private treatment for his service-connected disabilities should also be obtained on remand.  In this regard, the Board observes that the most recent VA treatment records associated with the claims file are dated in August 2001 and the most recent private treatment records, from St. Andrews Polymedic Medical Center, are dated in August 2003.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).


Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Provide appropriate notice to the Veteran as to how to substantiate his TDIU claim.

2.  After obtaining any necessary release forms for the requisition of private treatment records, obtain a complete copy of any identified private treatment records, dated since August 2003, as well as any VA treatment records, dated since August 2001, from any identified VA or private health care providers that have provided treatment for the Veteran's service-connected disabilities.  All reasonable attempts should be made to obtain such records.  If any requested records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file.  The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002) and 38 C.F.R. § 3.159(e) (2012).

3.  Thereafter, return the Veteran's claims file to the VA examiner who conducted his September 2010 orthopedic examination of the spine for further comment concerning the severity of his service-connected lumbosacral spine disability.  If, for whatever reason, this examiner is no longer available or able to provide additional comment, then obtain additional comment from another equally qualified examiner.  In either eventuality, it may be necessary to have the Veteran reexamined, but this is left to the designee's discretion.  

The VA examiner should comment regarding the severity of the ankylosis of the Veteran's spine.  Specifically, the examiner should describe whether the Veteran's ankylosis is favorable or unfavorable, and describe the spinal segment(s) found to be ankylosed (i.e. entire thoracolumbar spine).  The examiner should reconcile any ankylosis findings with the finding that he had flexion of the thoracolumbar spine from zero to 30 degrees, as recorded in the September 2010 VA examination report.

The examiner should additionally comment on the finding that the Veteran has suffered incapacitating episodes with respect to  the thoracolumbar region over the preceding 12 months, and the indication in the September 2010 VA examination report that the Veteran suffered three months of incapacitating episodes.  The examiner should reconcile any finding of incapacitating episodes with the noted (and contradictory) indication in the prior examination report that he did not suffer incapacitating episodes due to IVDS.

Finally, the examiner should state whether it is at least as likely not (50 percent or greater probability) that the Veteran's service-connected disabilities (i.e. DDD and arthritic changes of the lumbosacral spine, sensorineural hearing loss, inguinal hernia, and malaria), in the aggregate, preclude him from securing and following substantially gainful employment, without regard for any nonservice-connected disorders and considering the Veteran's educational and occupational background.

In requesting this additional medical comment on the Veteran's service-connected lumbosacral spine disability and his capacity to secure and follow substantially gainful employment, the Board notes that the Veteran has been rendered not competent to handle disbursement of funds, and therefore may not be able to respond accurately to inquiries regarding the severity of his disability.  Accordingly, the VA examiner should make reasonable attempts to work around the Veteran's incapacity.   

The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.  

4.  Thereafter, review the claims file to ensure that the foregoing requested development has been completed.  In particular, review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures.  See Stegall v. West, 11 Vet. App. 268 (1998).

5.  Finally, readjudicate the Veteran's increased rating and TDIU claims on appeal.  If either claim is not granted in full, provide the Veteran and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return this appeal to the Board for further appellate review.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs