Citation Nr: 1303286 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 10-36 458a ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a disability rating in excess of 40 percent for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran had active service from October 1996 to September 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Muskogee, Oklahoma Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a timely substantive appeal with the issue of entitlement to service connection for a bilateral leg disability, secondary to his service-connected low back disability. In an August 2012 rating decision, the Veteran was granted service connection for right and left leg disabilities secondary to his service-connected low back disability, effective October 11, 2010. There is no indication that the Veteran has expressed disagreement with the disability ratings assigned in that decision. Therefore, this is considered a full grant of the benefits sought on appeal. The Board has limited its consideration accordingly. The Board has reviewed the Veteran's physical claims file and the Veteran's electronic file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The Veteran's low back disability has been manifested by flexion limited to, at worst, 20 degrees; pain, stiffness, fatigue, and numbness. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 40 percent for lumbar strain with spondylosis have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.14, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). Prior to the initial adjudication of the claim, the Veteran was mailed a letter in January 2009 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The January 2009 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim. The Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) are on file, pertinent post-service treatment records have been obtained, and the Veteran has been afforded appropriate VA examinations. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Analysis The Veteran argues that his back disorder is more severe than is contemplated by the currently assigned rating. However, the preponderance of the evidence is against a finding that his back symptoms approximate those set out by applicable regulation for a rating higher than 40 percent. The claim will therefore be denied. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Disabilities of the spine are evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5235- 5242 (2012). Intervertebral disc syndrome will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes (outlined below), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25 . 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2010). Under the general rating formula for rating diseases and injuries of the spine, effective September 26, 2003, a 40 percent disability rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less; or, if there is favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. A 50 percent disability rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 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 thoracolumbar spine is to 240 degrees. Third, 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 the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Note five provides that for VA compensation purposes, unfavorable ankylosis is a condition in which 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Note six provides that disabilities of the thoracolumbar and cervical spine segments shall be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. In February 2009, the Veteran was afforded a VA examination. He reported being diagnosed with lumbosacral strain with spondylolisthesis, L5 over the sacrum. He reported numbness and constant low back pain. He reported the pain traveled to his legs bilaterally and that the pain could be elicited by physical activity - again, service connection for a bilateral leg disorder is in effect. As to his back, the Veteran reported the pain was aching and sharp in nature and was a 9 out of 10 in intensity. He reported that the pain was relieved by Flexeril and Naproxen and that he could function at the time of the pain with medication. He denied stiffness, loss of bladder control, and loss of bowel control. He reported functional impairment in the form of limited bending and stooping and difficulty sitting for long periods of time due to pain and numbness in the lower back that traveled into the legs bilaterally. On physical examination, the Veteran's posture and gait were within normal limits and he was able to ambulate unassisted. There was evidence of radiating pain on movement described as up into the upper lower back. There was no tenderness or muscle spasm. Straight leg raises were negative, bilaterally. There was no ankylosis of the lumbar spine. Range of motion measurements were as follows: flexion to 30 degrees, pain beginning at 20 degrees; extension to 20 degrees, pain beginning at 20 degrees; right lateral flexion to 22 degrees, pain beginning at 22 degrees; left lateral flexion to 22 degrees, pain beginning at 22 degrees; right rotation to 30 degrees, pain beginning at 30 degrees; left rotation to 30 degrees, pain beginning at 30 degrees. The joint function of the spine was additionally limited by pain after repetitive use; however, there was no additional limitation in degree. There was no additional limitation from fatigue, weakness, lack of endurance, and incoordination on repetitive use. Inspection of the spine revealed normal head position with symmetry in appearance and symmetry of spinal motion with normal curves of the spine. There were no signs of lumbar intervertebral disc syndrome with chronic and permanent nerve root involvement. Motor and sensory functions were within normal limits. The Veteran was noted to have intermittent paresthesia bilaterally. On X-ray there was minimal diffuse lumbar spondylosis. The examiner diagnosed lumbosacral strain with spondylosis with intermittent paresthesia of the legs at times. The effect of the Veteran's back disability on his daily activity was noted to be moderate. In October 2010, the Veteran was afforded another VA examination. He reported limitation in walking, and that on average he could walk for 100 yards in approximately 5 minutes. He reported that he experienced falls because of his spine disability. He reported symptoms of stiffness, fatigue, spasm, decreased motion, and numbness. He reported that he did not experience paresthesia in relation to his spine disability, but that he did have weakness in the legs. He denied bowel problems, erectile dysfunction, and bladder problems. He reported the pain was constant and traveled up and down his back and into his legs. He reported the pain level was severe and it could be exacerbated by physical activity, sitting, or lying down. He reported that the pain was relieved by rest and that at the time of the pain he could function with medication. During flare-ups, he reported numbness of his legs. He reported that he was not receiving any treatment for his disability and that he had never been hospitalized, nor had he had any surgery, for his disability. He denied any incapacitation caused by his disability in the past 12 months. The reported functional impairment in the form of being unable to climb stairs. On physical examination, the Veteran's posture and gait were normal and he did not require assistance to ambulate. Examination of the feet did not reveal any signs of abnormal weight bearing or breakdown. There was evidence of radiating pain on movement and muscle spasm was present, described as the thoracolumbar muscles. There was tenderness of the thoracolumbar region noted on examination. There was guarding of movement and weakness in the thoracolumbar region. Muscle tone and musculature were normal. Straight leg raises were positive, bilaterally. There was no ankylosis of the thoracolumbar spine. Range of motion measurements were as follows: flexion to 25 degrees, extension to 11 degrees, right lateral flexion to 15 degrees, left lateral flexion to 13 degrees, right rotation to 11 degrees, and left rotation to 12 degrees. Pain was noted at the end of all ranges of motion. The joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Lumbar spine sensory function was impaired. There were signs of lumbar intervertebral disc syndrome. Inspection of the spine revealed normal head position with symmetry in appearance and symmetry of spinal motion with normal curves of the spine. X-ray showed mild bilateral facet arthropathy at L4-S1. The examiner diagnosed lumbosacral strain with bilateral facet arthropathy L4-S1; and intervertebral disc syndrome with degenerative arthritis and likely involvement of the sciatic nerve. The effect of the Veteran's back disability on his usual occupation was limited walking, only 100 yards, and standing up to 45 minutes at a time due to back pain. VA treatment records indicate the Veteran receives sporadic treatment for his low back disability at the VA Medical Center. A review of those records shows that the Veteran complains of back pain, but there is no evidence of ankylosis or additional range of motion measurements of record in the VA Medical Center treatment notes. Additionally, there was no evidence that the Veteran has experienced any incapacitating episodes with medically prescribed bed rest as a result of his low back disability. The preponderance of the evidence is against a finding supporting a disability rating in excess of 40 percent for his low back disability. The Veteran's flexion is limited, at most, to 20 degrees. Additionally, there is no indication from the record that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine. Therefore, a higher disability rating is not warranted at this time. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242. The Board has considered the Veteran's complaints of pain, stiffness, fatigue, spasm, decreased motion, and numbness. However, there is no other evidence showing that the Veteran has more limitation of motion than that found at his VA examinations. Thus, considering all pertinent disability factors, there is no appropriate basis for assigning a schedular rating in excess of 40 percent at any point during the period on appeal for the functional impairment of the Veteran's low back disability. The Board has also considered assigning a disability rating under Diagnostic Code 5243, for degenerative disc disease (DDD) or intervertebral disc syndrome based on incapacitating episodes rather than limitation of motion. However, while the Veteran has been diagnosed with intervertebral disc syndrome with degenerative arthritis changes, there is no evidence that the Veteran has been medically prescribed bed rest and the October 2010 examiner specifically reported that the Veteran denied any incapacitating episodes within the last 12 months. Therefore, the Veteran's back disorder is properly rated based on pain and limitation of motion. The Board has also considered assigning staged ratings; however, at no time during the period in question has the Veteran's low back disability warranted a higher schedular rating. Hart v. Mansfield, 12 Vet. App. 505 (2007). The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration 38 C.F.R. § 3.321(b)(1) (2012). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). The severity of the Veteran's disability is contemplated by the schedular criteria. The Veteran has not reported interference with employment or repeated hospitalizations. His description of his back disorder, coupled with his associated bilateral leg disorder, indicates that he has reported symptoms of stiffness, some limitation of motion, and pain - all included in the rating criteria currently assigned. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. In addition, the evidence does not show frequent hospitalization or marked interference with employment beyond that envisioned by the currently assigned rating. Referral of this case for extra-schedular consideration is not in order. ORDER Entitlement to a disability rating in excess of 40 percent for the Veteran's low back disability is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs