Citation Nr: 1305046	
Decision Date: 02/11/13    Archive Date: 02/21/13

DOCKET NO.  09-00 527	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to an increased rating for lumbar spondylosis and degenerative arthritis (previously characterized as chronic lumbosacral strain), assigned a 10 percent rating prior to March 19, 2012, and a 20 percent rating effective from that date.  


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

K. Hudson, Counsel
INTRODUCTION

The Veteran had active service from February 1980 to March 1988.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of December 2006, which denied service connection for hypertension and a rating in excess of 10 percent for lumbosacral strain.  In October 2011, the Veteran appeared at a hearing held at the RO before the undersigned Veterans Law Judge (VLJ).  

The appeal was remanded in February 2012.  On remand, service connection for hypertension was granted by the RO in October 2012, and this issue is no longer on appeal.  That rating decision also granted a 20 percent rating for the Veteran's low back disability, now characterized as lumbar spondylosis and degenerative arthritis, effective from March 19, 2012.  However, a grant of less than the maximum available rating does not terminate the appeal, unless the veteran expressly states he is satisfied with the assigned rating.  AB v. Brown, 6 Vet.App. 35, 38 (1993).  The two-tiered issue, as set forth on the title page, remains on appeal.  

As the Veteran is currently employed and is not specifically claiming that he cannot work due to this service-connected back disability, the Board finds that an implied claim for a total disability rating based on individual unemployability (TDIU) has not been raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).


FINDINGS OF FACT

1.  Prior to November 7, 2006, the service-connected lumbosacral spine disability was manifested by mild disc protrusion and degenerative changes, flexion greater than 60 degrees, and combined range of motion more than 120 degrees (even considering pain, weakness, stiffness, fatigability, and lack of endurance).

2.  Beginning November 7, 2006, the service-connected lumbosacral spine disability has been manifested by MRI evidence of disc bulging without herniation, and degenerative changes, with limitation of motion, but with flexion to greater than 30 degrees, and without ankylosis, incapacitating episodes, or additional functional impairment, including during flare-ups, and the schedular criteria are adequate.  

3.  Bed rest has not been prescribed to treat the Veteran's back disability.

4.  The manifestations of the service connected back disability are fully contemplated by the schedular rating criteria and have not caused marked interference with employment; back treatment has not required hospitalization.  


CONCLUSIONS OF LAW

1.  Prior to November 7, 2006, the criteria for an evaluation in excess of 10 percent for a service-connected lumbosacral spine disability were not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5239 (2012).    

2.  Effective November 7, 2006, the criteria for an evaluation of 20 percent, but no higher, for a service-connected lumbar spondylosis, degenerative arthritis (previously characterized as chronic lumbosacral strain) have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5239 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act (VCAA) Compliance

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012).  In a July 2006 letter, prior to the initial adjudication of the claim, the RO advised the claimant of information necessary to substantiate the claim.  He was advised of various types of lay, medical, and employment evidence that could substantiate his claim, and of his and VA's respective obligations in obtaining such evidence.  

Also, in an August 2008 letter, the RO provided more detailed information concerning the information necessary to substantiate the claim for an increased rating.  The Veteran was informed of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., treatment records, or statements of personal observations from other individuals.  He was informed that a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  He was also provided with information regarding effective dates.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

Although this letter was not sent until after the initial adjudication of the claim, it was followed by readjudication and issuance of the statement of the case in November 2008-as well as by multiple subsequent readjudications and issuances of supplemental statements of the case, most recently in October 2012.  Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect).  Hence, the VCAA notice requirements have been satisfied.  38 U.S.C. § 5103(a); 38 C.F.R. § 3.159.  

VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c).  The Veteran's VA and service treatment records have been obtained, as have other treatment records adequately identified by the Veteran.  VA examinations were provided in November 2006, October 2008, and March 2012; those examinations, in conjunction with the other evidence of record, describe the disabilities in sufficient detail for the Board to make an informed decision.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  There is no evidence indicating that there has been a material change in the service-connected disorder since the last examination.  38 C.F.R. § 3.327(a).  

When conducting a hearing, a VLJ must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2012). Here, at the October 2011 hearing, the undersigned VLJ discussed the elements required for the Veteran's increased rating claim, and elicited additional information concerning his relevant medical history. His appeal was remanded for further action based, in part, on his testimony.  

Pursuant to the Board remand in February 2012, outstanding VA treatment records were obtained, and a VA examination was provided in March 2012, which contained the requisite findings.  Thus, there has been substantial compliance with the remand development order.  Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  

All necessary notification and development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993). Neither the appellant nor his representative has identified, and the record does not indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. 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 Rating-Lumbar Spine

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.  

Although the disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned.  Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  If the disability has undergone varying and distinct levels of severity throughout this time period, staged ratings may be assigned.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).  Here, the RO assigned staged ratings for the Veteran's low back disability, with a rating of 10 percent disabling effective prior to March 19, 2012, and a 20 percent rating effective that date.  

Under the General Rating Formula for Diseases and Injuries of the Spine [38 C.F.R. § 4.71a, Codes 5235-5243], the criteria are as follows:

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 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, warrants a 10 percent rating.  

For forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, a 20 percent rating is warranted.  

For forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine, a 40 percent rating is warranted.  

Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating.  Ankylosis is immobility and consolidation of a joint due to disease, injury or surgical procedure.  Cullen v. Shinseki, 24 Vet. App. 74 (2010).  

The general formula rating criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine.  38 C.F.R. § 4.71a, Codes 5235-5243.  

When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups.  38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).  The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).  Painful motion is an important factor of disability, and 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; Burton v. Shinseki, 25 Vet. App. 1 (2011).  

For the period prior to March 19, 2012, the Veteran has been assigned a 10 percent rating for his low back disability.  

Taking all of the above factors into consideration, the Board finds that the Veteran's symptomatology more closely approximated the criteria for a 20 percent rating effective November 7, 2006, the date of the VA examination which first showed an increase in symptomatology.  The VA examination in November 2006 revealed forward flexion to 80 degrees and combined range of motion of 180 degrees, and was not further limited by pain.  After repetitive use, however, there was an additional limitation of joint function by 10 degrees, which would be to 70 degrees of flexion and a combined range of motion of 120 degrees.  X-rays showed straightening of the lumbar lordosis, which could be due to muscle spasm.  Private X-rays of the lumbar spine in June 2008 revealed some mild scoliosis.  The October 2008 VA examination showed forward flexion to 70 degrees with combined range of motion to 190 degrees.  However, without pain, forward flexion was to 50 degrees and the combined range of motion was to 120 degrees.  Records from a private chiropractor show that in March 2009, forward flexion of the lumbar spine was to 45 degrees, and the combined range of motion was to 105 degrees.  In May 2009, forward flexion was to 50 degrees and combined range of motion to 135 degrees.  

Moreover, there was sufficient evidence of adequate pathology to support the limitation of motion.  He had degenerative arthritis shown on X-rays.  In addition, magnetic resonance imaging (MRI) scans in November 2008 and June 2009 showed, in addition to osteoarthritis, bulging discs in the lumbosacral spine with some nerve root impingement.  In view of these findings, the Board concludes that the Veteran's low back symptoms more closely approximated the criteria for a 20 percent rating as of the date of the VA examination on November 7, 2006.  In reaching this determination, the benefit-of-the-doubt rule has been applied.  38 U.S.C.A. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

Additionally, a rating in excess of 20 percent is not warranted.  The records do not show limitation of forward flexion to 30 degrees or less, or ankylosis involving the lumbosacral spine, including during flare-ups, which is contemplated for a higher rating under the general formula.  The examinations and outpatient treatment records noted above showed forward flexion to 45 degrees or more.  Later outpatient treatment records show that in November 2010 and October 2011, the Veteran had full range of motion in the low back.  An MRI of the lumbosacral spine in November 2010 showed that there had been no significant interval change since June 2009.  The MRI showed disc spaces from T12-L1 down to L4-L5 had no evidence of disc herniation or evidence of neural foramina stenosis.  Developmentally the spinal canal appears small.  At L5-S1, there was a broad-base disc protrusion at L5-S1 with annular tear and also neural foramina compromise bilaterally, right more than left. 

On the VA examination in March 2012, the Veteran complained of pain throughout the back.  He stated the pain comes and goes, and he rates it on average as a 4 to 8 on a 1 to 10 scale.  The Veteran states he had flare-ups but could not relate them to any specific cause.  He used a cane occasionally and a back brace regularly, and said he could walk less than 100 yards. On examination, flexion was to 45 degrees, with no additional limitation after repetition.  He had guarding or muscle spasm, which did not result in abnormal gait or spinal contour.  Muscle strength and sensation were normal.  The examiner noted that the Veteran started crying during the examination, which seemed out of proportion to the findings.  

The other treatment records do not show limitation of forward flexion to 30 degrees or less, or ankylosis involving the lumbosacral spine, including during flare-ups, which is contemplated for a higher rating under the general formula.  Additional functional impairment is not shown.  His primary symptom is pain, for which he takes medication and has received spinal injections.  However, "pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system."  Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011).  Functional impairment must be supported by adequate pathology.  Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (citing to 38 C.F.R. § 4.40).  The examiner in March 2012 concluded that the Veteran's spine disability was of moderate severity.  

The Veteran contends that due to back pain, his recreational activities have been significantly limited, and that he suffers from pain at work, with trouble bending, reaching, and with prolonged standing.  He has submitted lay statements in support of his assertions, which the Board finds credible.  He testified at his Board hearing in October 2011 that he has muscle spasms, and cannot bend down to tie his shoes at times.  He said that approximately 5 times a month, his back was incapacitating; at such times, he would try to lie down.  He said that when traveling he has to get up and move around after a couple of hours.  He stated that he cannot stay in one position for too long.  He also testified that he wears a back brace about three times per week, but a VA outpatient treatment record dated in May 2010 noted that, in connection with his back pain, he was to limit the use of a back brace.  Although his statements and testimony are credible, they do not reflect symptomatology in excess of that contemplated by a 20 percent rating.  

Prior to November 7, 2006, however, a rating greater than 10 percent is not warranted.  The Veteran did not specifically state that his low back condition had increased in severity prior to the date of the VA examination, and, after the examination, he referred to the examination as evidence that his condition had worsened.  Outpatient treatment records dated as far back as June 2005, a year prior to the claim for increase, do not show limitation of motion warranting a higher rating, nor do they show muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  Additional functional impairment is not shown during that period, as well.  As late as the November 2006 examination, the Veteran stated that his back condition did not cause incapacitation or functional impairment.  Thus, the preponderance of the evidence is against a higher rating prior to November 2006.  

Moreover, with regard to the entire appeal period, the Board acknowledges that, under the general formula for rating back disabilities, any associated objective neurologic abnormalities are to be evaluated separately under an appropriate diagnostic code.  38 C.F.R. § 4.71a, Codes 5235-5243 Note (1).  The Veteran reports radiculopathy to the right lower extremity.  However, he has been granted service connection for radiculopathy of the right lower extremity, assigned a 10 percent rating effective May 24, 2010, and a 20 percent rating effective March 19, 2012, and he did not appeal those ratings.  On the most recent examination in March 2012, the examiner diagnosed radiculopathy of the right leg as described but with no objective findings on the physical examination.  The examiner concluded that radiculopathy symptoms would be of moderate severity, which formed the basis of the grant of a 20 percent rating.  Because the Veteran did not appeal the ratings assigned in the separate grant of service connection for radiculopathy, the Board will not address the matter in this decision.
The Veteran claims that he has incapacitating episodes, and intervertebral disc syndrome may also be rated based incapacitating episodes, instead of under the general formula, if a higher rating will result.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  When rated based on incapacitating episodes, different ratings are assigned based on the number and duration of incapacitating episodes, defined as 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.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  The Veteran does not claim, nor does the evidence otherwise indicate, that he has had incapacitating episodes meeting this definition.  He states that he lies down during these episodes, but has not stated that a physician has prescribed bed rest, nor does the medical evidence demonstrate such.  Therefore, a rating on this basis is not warranted.  

Finally, with respect to whether referral for extraschedular consideration is warranted, the Board finds that the Veteran's back disability picture is contemplated by the rating schedule, which provides for higher evaluations for low back disorders.  The evidence of record does not support limitation of activities, beyond that contemplated by the schedular evaluation in effect.  All of the Veteran's symptomatology associated with his back disorder has been taken into account in the current assigned rating.  As such, the schedular criteria are considered to be adequate; and because this is the case, it is not necessary to proceed to the second step, a discussion of whether the exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms," such as "marked interference with employment" and "frequent periods of hospitalization."  Nevertheless, it is worth noting that no periods of hospitalization have been shown, and although he reports some interference with employment, this involves difficulties with reaching and stooping, and needing to move around; marked interference has not been indicated.  

The Board concludes the Veteran's low back symptoms did not more closely approximate a rating in excess of 10 percent prior to November 7, 2006, and since then, have not more closely approximated the criteria for a rating in excess of 20 percent.  In reaching this decision, the Board has considered the medical evidence of record, as well as the Veteran's statements, testimony and lay statements submitted on his behalf.  However, the symptoms reported in the lay statements are more vague than the specific symptoms and history obtained in connection with the various examination reports, and do not, in any event, suggest the presence of symptomatology contemplated for a rating in excess of 20 percent.  Although a 20 percent rating is warranted effective November 7, 2006, the preponderance of the evidence is against the claim for an evaluation in excess of 20 percent.  


ORDER

Entitlement to an evaluation for lumbar spondylosis and degenerative arthritis (previously characterized as chronic lumbosacral strain) in excess of 10 percent, prior to November 7, 2006, is denied.  

Entitlement to a rating of 20 percent, but no higher, for lumbar spondylosis, degenerative arthritis (previously characterized as chronic lumbosacral strain) effective November 7, 2006, is granted, subject to the statutes and regulations governing the payment of monetary awards.  



____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs