Citation Nr: 1306090 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 10-45 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for service-connected degenerative disc disease of the lumbosacral spine, status post compression fracture of the L5 vertebra prior to June 6, 2012. 2. Entitlement to a disability rating in excess of 60 percent for service-connected degenerative disc disease of the lumbosacral spine, status post compression fracture of the L5 vertebra from June 6, 2012. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran's served on active duty between July 1987 and July 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2010 of a Department of Veterans Affairs (VA) Regional Office (RO), which granted an increased disability rating of 20 percent for the Veteran's service-connected low back disability effective October 2009. In November 2011, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of this testimony is associated with the claims file. The Board remanded the claim in February 2012 and, in October 2012, the RO granted an increased, 60 percent rating, effective June 2012. FINDINGS OF FACT 1. Prior to June 6, 2012, the Veteran's degenerative joint disease of the lumbar spine was manifested by no more than flexion to 45 degrees and extension to 0 degrees. 2. From June 6, 2012, the Veteran's degenerative joint disease of the lumbar spine was manifested by no more than incapacitating episodes of intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks during the past twelve months. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent prior to June 6, 2012 for a lumbar spine disorder are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.7, 4.71a Diagnostic Codes 5235, 5243 (2012). 2. The criteria for a disability rating in excess of 60 percent from June 6, 2012 for a lumbar spine disorder are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.7, 4.71a Diagnostic Codes 5235, 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A November 2009 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a October 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). VA examinations were conducted in November 2009 and June 2012; the Veteran has not argued, and the record does not reflect, that these examinations inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). These issues were most recently before the Board in February 2012, when the case was remanded to the VA RO (via the Appeals Management Center (AMC), in Washington, D.C.). The purpose of this remand was to obtain any outstanding VA treatment records from May 2010 to the present, and to obtain a VA orthopedic examination. All of the actions previously sought by the Board through its prior development request appear to have been substantially completed as directed. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Subsequently, a rating decision was issued in October 2012 that increased the rating from 20 percent to 60 percent and a supplemental statement of the case (SSOC), also issued in October 2012, confirmed and continued the 60 percent rating. Of note, in the February 2013 informal hearing presentation, the Veteran, through his representative, asserts that all of the Veteran's treatment records have not been obtained; that the VA examiner had not examined the Veteran's claims file; that his examination was not adequate; and that the RO had withheld evidence from the Board. The claims file contains contemporary evidence of treatment and there is no indication that there are additional, missing, records. Moreover, regarding the Veteran's claim that earlier records, dated before September 2008, exist but are not of record, as service connection has already been established and an increase in the disability rating is at issue, records dated prior to September 2008 would not further inform the Veteran's claim for an increased rating, as requested in October 2009. Francisco v. Brown, 7 Vet. App. 55 (1994). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). Laws and Regulations Disability ratings are determined by applying a schedule of ratings 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. Further, 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 assigned. 38 C.F.R. § 4.7. While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Procedurally, service connection for compression fracture L5 was established as being 10 percent disabling effective July 14, 1989. A claim for an increase in the evaluation of this condition was received from the Veteran on October 19, 2009 and, in a February 2010 rating decision, his disability rating was increased to 20 percent. In an October 2012 rating decision, the RO again increased the Veteran's disability rating, to 60 percent, effective June 6, 2012, the date of the Veteran's most recent VA examination. The Veteran is currently evaluated under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5243, covering intervertebral disc disease. Either of two sets of criteria may be applied. The disc disease may be rated based on the cumulative amount of time in which the condition was incapacitating over the prior 12 months, or based upon the degree of limitation of motion. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. Incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months are assigned a 20 percent rating. Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months are assigned a 40 percent rating, and incapacitating episodes having a total duration of at least 6 weeks during the past 12 months are assigned a 60 percent rating. Id. A 60 percent rating is the highest schedular rating possible under 38 C.F.R. § 4.71a, Diagnostic Code 5243. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "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, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. The Veteran's degenerative disc disease of the lumbar spine may also be evaluated pursuant to the General Rating Formula for Diseases and Injuries of the Spine. The disability is evaluated 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. Under that Formula, a 20 percent rating requires thoracolumbar spine forward flexion 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 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a, DCs 5235-5242. 38 C.F.R. § 4.71a, Code 5237, Note 1 mandates that neurological symptoms be considered separately when such symptoms are associated with a spine disorder. As neurological symptoms associated with the Veteran's lumbar spine disorder have been service connected separately, these symptoms are not considered in the analysis below. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a, Code 5237, Note 2. All measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, Code 5237, Note 4. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999). The possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Analysis The Veteran underwent a VA examination in November 2009 following his claim that his back symptoms had increased. The Veteran reported a history of fatigue, decreased motion, stiffness and spasms. The Veteran reported pain in the lumbosacral area which was constant and moderate. He reported moderate flare-ups every one to two months which lasted between three and seven days. The Veteran reported no incapacitating episodes. Physical examination revealed kyphosis but no ankylosis, lordosis, or scoliosis. Range of motion was from 0 to 45 degrees of flexion, left and right lateral flexion were from 0 to 20 degrees and lateral rotation was between 0 and 20 degrees bilaterally, there was objective evidence of pain on active motion. There were no additional limitations after three repetitions of range of motion. A diagnosis of degenerative disc disease with fracture of the L5 vertebra was provided. An April 2011 computed tomography (CT) scan showed moderate chronic compression deformity of L5 vertebral body and minimal retrolisthesis of L4 over L5 and L5 to S1. The vertebral height and alignment was otherwise reported to be normal. For the period before June 6, 2012, the Veteran's symptoms do not warrant a rating in excess of 20 percent. The Veteran demonstrated flexion to 45 degrees, and his combined range of motion is to 125 degrees, which warrants a 20 percent disability rating. However, forward flexion of 30 degrees or less is not shown nor is there favorable ankylosis of the entire thoracolumbar spine. Thus manifestations which would warrant a higher rating based on limitation of range of motion are not demonstrated. Nor does the evidence of record, prior to the June 6, 2012 VA examination, demonstrate incapacitating episodes of intervertebral disc syndrome having a total duration of at least four weeks but less than six weeks during the past 12 months. The Veteran is shown to have reported no incapacitating episodes at his November 2009 VA examination and he stated this again during his February 2012 Travel Board hearing. Thus, there is no schedular basis for a rating in excess of 20 percent due to the Veteran's limitation of motion or intervertebral disc disease. The Veteran was afforded a VA examination on June 6, 2012. During his examination the Veteran stated that he experienced continuous pain with flare-ups daily which lasted between two and three hours. Range of motion was reported as flexion to 35 degrees with painful motion at 25 degrees and extension to 10 degrees with pain at 5 degrees. Right lateral flexion ended at 10 degrees, with pain at 5 degrees. Left lateral flexion ended at 15 degrees with pain at 10 degrees. Right lateral rotation was to 20 degrees with pain at 10 degrees. Left lateral rotation was to 10 degrees with pain at 5 degrees. The Veteran was able to perform repetitive use testing. There was no additional limitation in range of motion with repetition but limitations in movement, excess fatigability and incoordination. It was noted that the Veteran had had incapacitating episodes due to intervertebral disc syndrome which had lasted for at least six weeks. Because the available evidence of record from June 6, 2012 demonstrates incapacitating episodes due to intervertebral disc syndrome which had lasted for at least six weeks, a 60 percent disability rating is warranted. The evidence does not show symptoms which might warrant a rating in excess of 60 percent. There is no higher schedular rating for intervertebral disc syndrome. Nor does the record does demonstrate unfavorable ankylosis of the entire spine, the only schedular criteria that would warrant a higher rating (100 percent) for limitation of motion. The application of a higher disability evaluation based on functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59 has been considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran has complaints of, weakness, fatigability, and limited motion. This functional impairment, however, is considered by the disability rating assigned above. Generally, the degrees of disability specified by the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Consideration has also been given regarding whether the schedular evaluations are inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The schedular evaluations in this case are adequate. Ratings in excess of those assigned are provided for certain manifestations of the lumbosacral spine disability, but the medical evidence reflects that those manifestations are not present. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability. The Veteran has not required hospitalization due to the service-connected disability, and, while the Veteran's employment is reported to have been changed due to his disorder, marked interference of employment due solely to the lumbar spine has not been shown. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. See Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the Board need not remand the Veteran's case for consideration of a total disability rating based on individual unemployability (TDIU). A TDIU claim is part of an increased rating claim when that claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran is presently employed and the level of impairment his back disorders cause is reflected by his present disability evaluation. Absent any evidence that the Veteran's is unable to work as a result of his service-connected disabilities, the issue of entitlement to a TDIU is not raised by the record. The preponderance of the evidence is against the claims; there is no doubt to be resolved; and increased evaluations for a lumbar spine disorders, for both periods on appeal, are not warranted. ORDER Entitlement to a disability rating in excess of 20 percent for service-connected degenerative disc disease of the lumbosacral spine, status post compression fracture of L5 vertebra prior to June 6, 2012, is denied. Entitlement to a disability rating in excess of 60 percent for service-connected degenerative disc disease of the lumbosacral spine, status post compression fracture of the L5 vertebra from June 6, 2012, is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs