Citation Nr: 1306793 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 10-18 467A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased rating for myofascial back pain, status-post laminectomy syndrome, evaluated as 20 percent disabling from December 8, 2009, to May 5, 2012, and as 40 percent disabling thereafter. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran was a member of the Tennessee Army National Guard from April 1983 to September 2005 and had active duty for training from June 1982 to April 1983, and a period of active duty from April to September 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs Regional Office (RO) in Nashville, Tennessee, wherein the Veteran was denied service connection for a bilateral knee disorder and denied a rating in excess of 20 percent for his service-connected low back disability. The Veteran disagreed with the RO's February 2010 decision and appealed those matters to the Board. In an April 2012 decision, the Board denied entitlement to a rating greater than 20 percent for post-lumbar laminectomy syndrome for the period prior to December 8, 2009, and remanded for further development the issues of entitlement to a rating in excess of 20 percent for the Veteran's service-connected myofascial back pain, status-post laminectomy syndrome for the period from December 8, 2009, and entitlement to service connection for a bilateral knee disorder. By way of an October 2012 supplemental statement of the case (SSOC), the Appeals Management Center (AMC) increased the Veteran's low-back disability rating to 40 percent, effective May 5, 2012. Because less than the maximum available benefit for a schedular rating was awarded and because the increase was not granted for the entire rating period, the claim is properly before the Board. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); AB v. Brown, 6 Vet. App. 35 (1993). The Board will therefore address whether the Veteran is entitled to an evaluation in excess of 20 percent from December 8, 2009, to May 5, 2012, and/or in excess of 40 percent from May 5, 2012. Also, on remand from the Board, in a November 2012 rating action, the AMC granted service connection for right and left knee disabilities, and assigned noncompensable evaluations from August 17, 2009, to May 5, 2012, and 10 percent disability ratings thereafter. To date, it does not appear that the Veteran has disagreed with any aspect of that decision. Thus, the matter is not currently before the Board. The Board also notes that the Veteran appeared at Board hearing before the undersigned Veterans Law Judge in August 2011 via video conference with the Veteran sitting at the local RO and the undersigned sitting at the Board's Central Office in Washington, DC. A transcript of the testimony is of record and has been reviewed. FINDINGS OF FACT 1. For the period from December 8, 2009, to May 5, 2012, the Veteran's low back disability was manifested by mild to moderate limitation of motion of the thoracolumbar spine, which did not approximate thoracolumbar spine motion limited to 30 degrees or less or to ankylosis; incapacitating episodes of more than one week, and/or associated neurological symptomatology were not manifested. 2. For the period from May 5, 2012, the Veteran's service-connected low back disability has been manifested by functional loss due to pain which results in a limitation of motion to less than 30 degrees; ankylosis has not been shown and incapacitating episodes of more than one week, and/or associated neurological symptomatology have not been manifested. CONCLUSIONS OF LAW 1. The requirements for an evaluation higher than 20 percent for the myofascial back pain, status-post laminectomy syndrome for the period prior to May 5, 2012, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243 (2012). 2. The requirements for an evaluation higher than 40 percent for the myofascial back pain, status-post laminectomy syndrome for the period since May 5, 2012, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance 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. 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. It is now clear that for increased rating claims, the VCAA requires only generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009); Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2012); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO received the Veteran's claim for an increased evaluation of his service connected low back disability in August 2009. In September 2009, the RO sent to him a letter advising him of the need to submit evidence showing that his service-connected disabilities had increased in severity. The letter advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency. The letter also included the notice elements required by Dingess for how VA determines disability ratings and effective dates and stated that in determining the appropriate disability rating, the RO would consider that impact of the disability and its symptoms on employment. The RO informed the Veteran that he should submit evidence regarding how his disability affected his ability to work. The letter further provided the Veteran with the specific rating criteria used to evaluate his service-connected low back disability. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the September 2009 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and Vazquez-Flores, supra, and afforded the Veteran a meaningful opportunity to participate in the development of his claim. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. Regarding the duty to assist, the Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim. All available relevant evidence pertaining to the Veteran's claim has been obtained. The evidence includes his VA treatment records, private medical evidence, VA examination reports, and statements from the Veteran, to include his August 2011 hearing testimony. The agency of original jurisdiction specifically requested all VA treatment records from 2009 forward and a response to that request was received. The Veteran has not alleged that there is any additional outstanding evidence pertinent to the matter currently before the Board and the Board is also unaware of any such evidence. Further, the Veteran was afforded a VA examination in connection with his claim for an increased evaluation for his service-connected low back disability for the period from December 2009 forward. The VA examiner conducted a thorough examination of Veteran, to include range-of-motion testing, and considered the Veteran's subjective complaints related to his disability. The Board is satisfied that the examination report, along with the private and VA treatment reports of record, contains sufficient evidence by which to evaluate the Veteran's service-connected low back disability in the context of the rating criteria and during the relevant time period. Thus, the Board has properly assisted the Veteran by affording him an adequate VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Cox v. Nicholson, 20 Vet. App. 563 (2007). II. Analysis Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). "Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern." Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. For increased rating claims, staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart, supra. Further, "[w]here 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 (2012). The Board notes that when an evaluation of a disability is based on limitation of motion and/or arthritis, the Board must also consider, in conjunction with the otherwise applicable diagnostic code (DC), any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012). See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). In that regard, the functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Further, pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Moreover, painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran's service-connected low back disability has been rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5234, which pertains to intervertebral disc syndrome (IVDS). The Board notes that the regulations pertaining to evaluation of disabilities of the spine have twice been amended. However, as both of those amendments took effect prior to when the Veteran filed for an increased evaluation of his service-connected low back disability, only the post-September 26, 2003, rating criteria is applicable to determining the proper evaluation(s) for the Veteran's disability. Currently, the rating criteria provides for the evaluation of all spine disabilities under a General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a (2012). Under the General Rating Formula for spine disabilities, a 10 percent evaluation is assigned for 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. 38 C.F.R. § 4.71a, DCs 5235-5243 (2012). A 20 percent evaluation is assigned 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. Id. A 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. Lastly, a 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. Id. For VA compensation purposes, normal thoracolumbar spine forward flexion is to 90 degrees, extension is to 30 degrees, left and right lateral flexion are to 30 degrees, and left and right lateral rotation are to 30 degrees. 38 C.F.R. § 4.71a, DCs 5235-5243 Note (2); 38 C.F.R. § 4.71a, Plate V (2012). The combined range of motion is the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation and the normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, DCs 5235-5243 Note (2). For disabilities rated under 38 C.F.R. § 4.71a, DC 5243, a 10 percent evaluation is assigned for incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243 (2012). An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). Also under the General Rating Formula for spine disabilities, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DCs 5235-5243 Note (1). A review of the evidence relevant to the determination of the proper evaluation(s) of the Veteran's service-connected low back disability since December 8, 2009, shows that in February 2010, the Veteran submitted a statement reflecting that he suffered from severe pain as a result of his service-connected back disability. A SouthCrest Clinic progress note dated in April 2010 shows that the Veteran presented with complaints of sharp low back pain. It was noted that he used a lumbar support while at work and that there was tenderness across the lumbosacral spine region. His range of motion was mildly limited and the clinician noted cervical radiculopathy with nerve pain. A September 2010 progress note shows that the Veteran complained of severe low back pain and muscle spasms since his left knee surgery. Use of a TENS (Transcutaneous Nerve Stimulator) unit helped to decrease his pain. In August 2011, the Veteran testified at a hearing before the Board. The Veteran reported increased back problems beginning in February 2010, stating that he was given Lidoderm patches and had received a number of injections for back pain. He noted that he had to change his occupation due to his low back disorder, but that he was able to perform his work as a limousine driver on a full-time basis and had not lost any time from work since February 2010 due his low back disability. He reported sharp pain and stiffness and stated that it was difficult for him to walk at times. A VA treatment record dated in November 2011 records the Veteran's assertion that his pain had progressed significantly in the past year. Straight leg raising was positive, but the Veteran did not have any complaints of numbness or tingling. The Veteran was again seen at SouthCrest Clinic in March 2012 for complaints of severe low back pain. His lumbar spine range of motion was noted be moderately limited and an assessment of lumbar spine degenerative disc disease was made. In April 2012, the Veteran submitted a statement from his friends indicating that over the past five years, they had noticed a dramatic change in the Veteran's demeanor and physical abilities. They stated that the Veteran appeared to be constantly in pain and was no longer able to do the physical things that he had previously been able to do, such as weeding or mowing the lawn. In May 2012, the Veteran was afforded a VA examination in connection with his claim. The examination report reflects that the VA examiner reviewed the claims folder and considered the Veteran's subjective complaints related to his service-connected low back disability. At that time, the Veteran stated that he had flare-ups of back pain with significant physical exertion. Range-of-motion testing resulted in flexion to 10 degrees, with pain at 10 degrees, extension to 15 degrees, with pain at 10 degrees, right and left lateral flexion to 15 degrees, with pain at 15 degrees, and rotation to 15 degrees, bilaterally, with pain at 10 degrees, bilaterally. Repetitive testing did not result in any additional loss of motion. The functional impact of the Veteran's back disability was noted to be less movement than normal and pain on movement. The examiner indicated tenderness over the lumbosacral paraspinous area, as well as guarding or muscle spasm of the thoracolumbar spine. It does not appear, however, that any such guarding or spasm resulted in an abnormal gait. Muscle strength was normal, and there was no evidence of atrophy. Deep tendon reflexes and sensory examination were normal. Straight leg raising was positive, but the Veteran did not exhibit radicular pain or any other signs or symptoms due to radiculopathy. No other neurologic abnormalities were found. The examiner noted that the Veteran had IVDS and stated that he had experienced incapacitating episodes, totaling in duration of less than one week over that past 12 months. The Veteran indicated the occasional use of a cane on account of his back and bilateral knee pain. The examiner reviewed the results of a February 2012 magnetic resonance imaging (MRI) study, which showed evidence of arthritis. Regarding the occupational impact of the Veteran's disability, the examiner noted that his service-connected back disability caused him pain with physical labor, but that the Veteran was able to be engaged in sedentary work as a driver. As noted above, during the relevant time period, the Veteran's service connected low back disability has been evaluated as 20 percent disabling from December 8, 2009, to May 5, 2012, and as 40 percent disabling thereafter. Upon consideration of the evidence of record, the Board finds no basis upon which to award evaluations greater than those that are currently assigned. Prior to May 5, 2012, the evidence does not approximate the criteria for an evaluation higher than 20 percent. Notably, the evidence of record during the relevant time period is devoid of any specific range-of-motion findings. Moreover, the private medical records note only a mild and moderate limitation of motion. The Board does not read those descriptions as suggesting limitation of flexion to 30 degrees and it is evident that the Veteran did not experience favorable ankylosis of the entire thoracolumbar spine, such that a 40 percent rating would be warranted. Further, the May 2012 VA examiner indicated that the Veteran's incapacitating episodes totaled less than one week in the previous 12 months, which also does not support a rating greater than the currently assigned 20 percent at any point prior to May 5, 2012. The Veteran has not proffered any evidence of incapacitating episodes prior to May 2011, nor did he indicate that he experienced more than a moderate limitation of motion, or that his motion was so painful that it could be seen as equivalent to ankylosis. Similarly, the Board does not find that the evidence of record supports a rating greater than 40 percent at any point since May 5, 2012. The findings contained in the May 2012 VA examination report do not demonstrate ankylosis, as it is clear that, even considering the point at which the Veteran experienced pain, he has motion in all relevant directions. See Dorland's Illustrated Medical Dictionary 94 (31st ed.2007) (defining "Ankylosis " as "immobility and consolidation of a joint due to disease, injury, or surgical procedure."). There is also no suggestion that the Veteran has at any point had incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Accordingly, there is simply no basis upon which to award a rating greater than the currently assigned 40 percent since May 5, 2012. See 38 C.F.R. § 4.71a, DC 5243. In finding that the Veteran is not entitled to ratings greater than those which have been assigned at any point during the relevant time periods, the Board has considered the Veteran's complaints of severe back pain, but notes that while pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Indeed, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. Thus, even considering the DeLuca factors, regardless of their presence or of the point at which the Veteran began to experience pain, without some evidence of a resulting functional impairment that more nearly approximates the criteria for the next highest ratings, the evidence of record, to include the Veteran's subjective complaints, simply fails to establish entitlement to higher ratings. This is so because an evaluation in excess of the minimum compensable rating must be based on demonstrated functional impairment. The Board has also considered whether separate ratings for any neurological abnormalities are warranted. In this regard, while the Veteran has had positive straight leg tests, he has not complained of radiating pain or other radicular symptoms, nor has any medical provider indicated neurologic involvement of the lumbar spine. While cervical radiculopathy was identified, the evidence contains no suggestion of any lumbar radiculopathy. Further, the May 2012 VA examination report specifically indicates that the Veteran's sensory functions were normal and that he had no objecting findings of radiculopathy. Moreover, the Veteran has not endorsed bowel or bladder involvement. As such, the Board finds that the evidence weighs against an award of separate ratings for neurological abnormalities at this time. In finding that an evaluation greater than 20 percent is not warranted for the Veteran's service-connected low back disability prior to May 5, 2012, or greater than 40 percent thereafter, the Board has considered the benefit-of-the-doubt doctrine, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is unable to identify a reasonable basis for granting a rating greater than those already assigned for the Veteran's low back disability at any point during the pendency of the Veteran's claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102 (2012). The above determinations are also based upon consideration of applicable rating provisions and Board finds that the level of severity and symptomatology of the Veteran's service-connected low back disability are described by the established criteria found in the rating schedule for that disability. The Board finds that the applicable rating criteria specifically contemplate the level of disability and symptomatology reported, to include decreased motion, flare ups, and pain. When comparing the Veteran's disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the criteria set forth in the rating criteria for 20 and 40 percent disability ratings describe the Veteran's disability level and symptomatology throughout the pendency of his claim and, therefore, the currently assigned schedular evaluations are adequate. Referral for extraschedular consideration is therefore not required. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); 38 C.F.R. § 3.321(b)(1) (2012). Lastly, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that the issue of entitlement to a total rating based upon individual unemployability due to service connected disability (TDIU) is part of an increased rating claim when that issue is raised by the record. The issue is raised whenever there is "cogent evidence of unemployability, regardless of whether [the claimant] states specifically that he is seeking TDIU benefits." Comer v. Peake, 552 F .3d 1362, 1366 (Fed.Cir.2009). In this case, the Board finds that the issue of entitlement to TDIU has not been raised by the Veteran or the record, as there is no indication that the Veteran is unemployable due to his service-connected low back disability. Indeed, the Veteran has stated that he works full time as a limousine driver. ORDER Entitlement to a disability evaluation in excess of 20 percent for myofascial back pain, status-post laminectomy syndrome, from December 8, 2009, to May 5, 2012, and in excess of 40 percent from May 5, 2012, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs