Citation Nr: 1305946 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 10-40 762A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to a rating in excess of 20 percent for lumbar intervertebral disc syndrome (the "back disability"). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran had active duty service from September to December 1990. This matter is before the Board of Veterans Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In October 2011, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. At the hearing, the Veteran submitted additional evidence (including VA outpatient treatment records dated from 2010 to 2011 and March 2011 VA examination reports) with a waiver of RO consideration. 38 C.F.R. § 20.1304 (2012). Therefore, the Board may properly consider such newly received evidence. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT Throughout the period of the appeal, the Veteran's service-connected lumbar intervertebral disc syndrome has been manifested by forward flexion no less than 50 degrees, without incapacitating episodes having a total duration of at least 4 weeks in a 12-month period. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for lumbar intervertebral disc syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Lumbosacral strain is evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Code 5237. Intervertebral disc syndrome is 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, 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. Under the general rating formula for rating diseases and injuries of the spine, with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. An evaluation of 10 percent is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or if there is a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation 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. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. For purposes of evaluation under Diagnostic Code 5243, an "incapacitating episode" is a period of acute signs and symptoms due to Intervertebral Disc Syndrome that require bed rest as prescribed by a physician and treatment by a physician. 38 C.F.R. § 4,71a, Diagnostic Code 5243 (emphasis added). 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 lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of motion of the 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. Fifth, 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. Sixth, 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. 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, to 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 Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. 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. 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; 38 C.F.R. § 3.102; 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. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Historically, a STR (service treatment records) notes that the Veteran was seen for complaints of back pain. Following service, a December 1991 VA examination report notes findings of herniated nucleus pulposus, L4-5 on the left. A February 1992 rating decision granted service connection for low back disability, rated 20 percent disabling. The Veteran submitted the instant claim for increased rating in August 2008. An October 2008 examination report notes the Veteran's complaints of increasing back pains since service. Specifically, she reported pain when flexing forward, carrying over 10 pounds, putting on shoes, standing up, and sitting or driving over 15 minutes. The pain often radiates down the lateral right leg to mid-calf, and occasionally down the left leg to midcalf. Occasionally the right 4th and 5th toes, and the left middle toes will tingle. The Veteran also reported stiffness in her back. The Veteran reported that her back pain is relieved by rest and by Hydrocodone. At the time of pain she can function with medication. She denied any back surgery. She also denied any numbness, loss of bladder control and loss of bowel control. She reported some stress incontinence for the past three years; she delivered a child in 1999 and is scheduled for surgery for the bladder incontinence. On examination, the Veteran's posture was within normal limits. Gait was within normal limits. The Veteran did not require any assistive device for ambulation. The examination revealed no evidence of radiating pain on movement. Muscle spasm was absent. There was tenderness noted in the midline lumbar back, and moderate tenderness on the right and left. There was positive straight leg raising test on the right and on the left. There was no ankylosis of the lumbar spine. Range of motion of the thoracolumbar spine was: flexion from 0 to 50 degrees with pain at 50 degrees; extension from 0 to 20 degrees with pain at 20 degrees; right lateral flexion from 0 to 30 degrees with pain at 30 degrees; left lateral flexion from 0 to 30 degrees with pain at 30 degrees; right rotation from 0 to 20 degrees with pain at 20 degrees; left rotation from 0 to 20 degrees with pain at 20 degrees. The joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The inspection of the spine revealed normal head position with symmetry in appearance. There was symmetry of spinal motion with normal curves of the spine. There were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. Neurological examination of the lower extremities revealed that motor function and sensory function were within normal limits. The right lower extremity reflexes were: knee jerk 3+ and ankle jerk 3+. The left lower extremity reflexes were: knee jerk 3+ and ankle jerk 3+. Lumbar spine X-ray findings were within normal limits. The diagnosis was lumbar intervertebral disc syndrome. The examiner opined that the urinary stress incontinence was not considered related to the lumbar condition. The effect of the condition on the Veteran's usual occupation and daily activity was pain with lifting over 10 pounds, and sitting or standing over 15 minutes. The report, overall, providers highly probative evidence against this claim, clearly indicating a higher evaluation is not met. In an October 2010 VA Form 9, the Veteran stated that she did not have at least four weeks of documented incapacitating episodes in the past year. She noted that because of her health insurance it takes at least two weeks to get in to see a doctor, during which time she had recovered or completed bed rest on her own (a point which the Board has taken into consideration, understanding the nature of medical care is sometimes highly complex). She further complained of sciatica in both legs. VA outpatient treatment records dated from 2010 to 2011 note the Veteran's ongoing complaints of and treatment for back pain. March 2011 VA examination report notes the Veteran's history of back pain with occasional sciatica (right greater than left) and urinary incontinence. The Veteran reported a history of one incapacitating episode of back pain in December 2010 for three weeks. She reported that flare-ups of back pain with prolonged sitting, standing, bending and lifting. Her pain improved with rest. On examination, gait was normal with no use of assistive devices. The examination revealed no evidence of muscle spasm. Range of motion of the thoracolumbar spine was: flexion from 0 to 90 degrees with pain; extension from 0 to 25 degrees with pain; right lateral flexion from 0 to 30 degrees with pain; left lateral flexion from 0 to 30 degrees with pain; right rotation from 0 to 30 degrees with pain; left rotation from 0 to 30 degrees with pain. The joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The report, overall, providers more evidence against this claim. MRI studies showed degenerative changes to the lower spine and disc desiccation at L4-5. EMG studies revealed no evidence of lumbar radiculopathy. The VA examiner found no link between the Veteran's incontinence and her military service or her service-connected back disability. The VA examiner did not find evidence of sciatica or radiculopathy. In support of this finding, it was noted that the Veteran's electro diagnostic report was within normal limits. Such facts provide evidence against a finding of a lower extremity disability and/or incontinence associated with the back problems, outweighing the Veteran's contentions on this medical causation issue. The Veteran testified during an October 2011 travel Board hearing that her back pain has gotten worse since service. She reported difficulty doing household chores. She essentially stated that VA had not awarded an increased rating because she had too much mobility in her back; however, she emphasized that her back disability continues to worsen. Under the applicable criteria for rating spine disabilities, the next higher (40 percent) rating requires thoracolumbar spine forward flexion not greater than 30 degrees or favorable ankylosis of the entire thoracolumbar spine. Such limitations are not shown at any time during the period of the appeal. The Board recognizes that forward flexion was limited to no less than 50 degrees. Throughout the period of the appeal, the Veteran's low back disability, from an orthopedic standpoint, appears to have been relatively stable, if not demonstrating a slight overall improvement over time. The Board therefore finds that the preponderance of the evidence is against the assignment of a higher disability rating for limitation of motion. See 38 C.F.R. § 4.71a , Diagnostic Code 5242. The Board has also considered whether a separate compensable rating for neurological impairment is warranted. In this regard, the Veteran has complained of sciatica. However, no objective findings of radiculopathy were noted on examination. There is no evidence of other neurological symptoms (bladder or bowel disturbance, e.g.,) related to the service-connected back disability which would warrant a compensable rating, and a separate rating for neurological impairment is not warranted, for reasons cited above. Further, the Board finds that a higher rating is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. None of the evidence shows that the Veteran has had at least four weeks of incapacitating episodes due to her back disability that required bed rest prescribed by a physician and treatment by a physician. In this regard, the Board has considered the Veteran's contentions regarding not being able to see a doctor on a regular basis. However, even with this consideration, the objective medical evidence, including detailed objective testing and evaluation of her back problem, would only provide evidence against the claim that a higher evaluation is warranted. Without taking into consideration her complaints, the current evaluation could not be justified based on the objective evaluations. The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7. Competent medical evidence reflects that the currently assigned 20 percent rating properly compensates her for the extent of functional loss resulting from any such symptoms. Although it was noted in the examination reports that the Veteran exhibited pain on thoracolumbar spine motion, these findings have already been taken into consideration in the assignment of the current 20 percent rating. While the Board understands the Veteran's central concern that she has a back disability that continues to get worse and makes it difficult to complete physical tasks, it is important for Veteran to also understand that without some problems associated with his back there would be no basis for the current 20 percent rating. Without consideration of the problems she has cited and the pain and other issues she has with her back during the appeal period, the current evaluation could not be justified. Further, while her condition may, in fact, have become worse, this fact does not necessary support the finding that her problem, at this time, meets the requirements for the next higher evaluation. The Board finds that the evidence does not support the Veteran's claim for an increased schedular rating. Accordingly, the claim must be denied. The Board has considered staged ratings, under Hart, supra, but concludes that they are not warranted. Since the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application. See Gilbert, supra. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1). (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step--a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The symptoms of Veteran's lumbar intervertebral disc syndrome are contemplated by the rating schedule. Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology of her back disability. Evaluations in excess of that assigned are provided for certain manifestations of the service-connected disability at issue, but the medical evidence reflects that those manifestations are not present in this case. As such, no further inquiry is required and the criteria for assignment of extraschedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996). Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the Veteran was provided with the appropriate notice, to include notice as to the disability rating and effective date elements of the claim, in an October 2008 letter (prior to the initial adjudication of the claim in May 2009). The Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations for the issue decided herein. The record in this case includes service treatment records (STRs), VA treatment records, VA examination reports, and lay evidence (to include hearing testimony). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the claimant. The Board is also not aware of any such evidence. The Veteran was afforded appropriate examinations in 2008 and 2010. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Given that the examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examinations to be sufficient. Thus, the Board finds that further examinations are not necessary. Although the Veteran testified during the October 2011 travel Board hearing that she had applied for Social Security Administration (SSA) disability benefits, she specifically stated that her back disability was not a part of this claim. There is no indication that any evidence associated with the SSA claim is relevant to the present issue on appeal following a detailed review of this issue by the undersigned at hearing and positive evidence from the Veteran herself that these records are not material to the issue before the Board at this time. Therefore, a remand for these records would not provide a basis to grant this claim (the VA would essentially be obtaining copies of our own medical records). The Board finds that more attempts to obtain additional evidence as to the matter addressed in this decision would serve no purpose. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements, arguments and testimony. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. ORDER A rating in excess of 20 percent for lumbar intervertebral disc syndrome is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs