Citation Nr: 1307899 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 10-22 457A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a disability rating in excess of 20 percent for a lumbosacral strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran served on active duty from December 1952 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in March 2011 before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing at the above RO; a transcript is of record. In a May 2011 Board Decision, an evaluation in excess of 20 percent for a lumbosacral strain was denied. The Veteran appealed that decision to the Court of Appeals for Veteran's Claims (CAVC). In December 2011, the CAVC vacated and remanded the claim back to the Board for additional consideration pursuant to a Joint Motion for Partial Remand (JMR) by the parties. This claim was again before the Board in July 2012, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT The Veteran's lumbosacral strain is not manifested by limitation of forward flexion of the thoracolumbar spine to 30 degrees or by incapacitating episodes of disc disease. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in an August 2009 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for an increased evaluation, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The August 2009 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last readjudicated in January 2013. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records and examination reports, and private treatment records. The Board also notes that actions requested in the prior remand have been undertaken. Indeed, a September 2012 letter asked the Veteran to provide information and release forms for VA to request private treatment records and asked him to advise VA if he receives VA treatment. Additionally, a VA examination was conducted. Following the January 2013 supplemental statement of the case, the Veteran's representative responded that there was no additional evidence to submit and requested that the case be returned to the Board immediately. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the CAVC held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ asked specific questions directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating. The VLJ also sought to identify any pertinent evidence not currently associated with the claims file. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that no further action pursuant to Bryant is necessary. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all of the evidence in the Veteran's claims file and electronic Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection for a lumbosacral strain was granted in an August 1973 rating decision. The instant claim for increase was filed in July 2009. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994); see 38 C.F.R. § 4.2. Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found, a practice known as "staged" ratings. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. §§ 4.45, 4.59 (2012). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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 General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent disability 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 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a (2012). Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for 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 rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, 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. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. A September 2007 lumbar spine MRI from private treatment showed extensive degenerative changes throughout the lumbar spine. The Veteran had a VA spine examination in September 2009. The examiner reported having reviewed the claims file, and the Veteran said that he retired from his career as an audiologist in 1997. The examiner noted a history of lumbar surgery done in 2001. The Veteran complained of low back pain with stiffness and dull pain, and there were no complaints of radiating pain. He took medication for back pain, used heating pads, and did stretches, and had not had physical therapy, trigger point injections or nerve blocks. The Veteran did not use a back brace. The current back pain was rated as zero out of 10, and he said that it flared to 10 out of 10. There was pain on a daily basis. Aggravating or precipitating factors were walking for around a half mile, lifting anything heavy, and lawn bowling. The Veteran was independent in activities of daily living and indicated that he was able to fish, hunt, and mow his lawn with a self propelled mower he walked behind. He also noted that he went to a gym three days a week to exercise, stretch and lift light weights. The examiner observed that the Veteran had normal ambulation, and did not use any assistive devices. The range of motion of the Veteran's thoracolumbar spine was to 90 degrees forward flexion, 30 degrees extension, 30 degrees of lateral flexion to each side, and 30 degrees of rotation to each side. With repetitive motion, he had mild flare-ups of pain at 30 degrees of lateral flexion and rotation. The straight leg raising test was negative bilaterally and there had been no incapacitating episodes in the past year. Deep tendon reflexes were somewhat diminished and a motor examination was normal. Spine x-rays showed evidence of the surgery, and showed severe narrowing in the disc spaces from T11 to S1. The examiner's diagnoses were past laminectomies, and advanced degenerative disease, without neuropathy or radiculopathy. A June 2010 MRI of the lumbar spine from private treatment showed multilevel degenerative changes superimposed on a congenitally small canal. There was also stenosis at several levels. A private physician who treated the Veteran in July 2010 and reviewed the June 2010 MRI results noted that the Veteran had full motor strength in the lower extremities. Deep tendon reflexes were absent at the ankles and knee jerks, and on a sensory examination light touch to the lower extremities was intact. The assessment was lumbar spinal stenosis, lumbar radicular pain, and low back pain. In the March 2011 Travel Board hearing, the Veteran reported that his low back was painful every morning and that at times his range of motion was pain free. He stated that he took medication for the pain, and that he worked through the pain, moving his back around to increase flexibility and reduce pain. There was pain in his legs that was worse on the left. The Veteran testified that his physician related the leg symptoms to his lower back disorder. He indicated that he used exercises that he had learned in physical therapy. The Veteran stated that in the preceding year he had not had flare-ups that made him unable to do anything and that he continued his activities while having pain. The pain in his legs was worse recently than it was at the time of the 2009 VA examination. The Veteran underwent another VA examination in October 2012 at which he reported recurrent flank and posterior buttock pain while lying flat and when walking long distances. He also noted subjective leg paresthesias. There were no bladder or bowel symptoms. On examination there was normal spine motion, strength, sensation and reflexes. X-rays showed multilevel intervertebral disc disease with collapse of disc height and hypertrophy at all levels, most pronounced at L3-S1. Range of motion testing was forward flexion to 90 degrees or greater, extension to 30 degrees, bilateral lateral flexion to 30 degrees, and bilateral lateral rotation to 30 degrees. There was no objective evidence of pain in the ranges of motion and no additional limitation in range of motion of the thoracolumbar spine following repetitive use testing. There was also no functional loss or impairment of the thoracolumbar spine. The lower extremities had full muscle strength, deep tendon reflexes were normal, and straight leg raising was negative. There was no radicular pain or other signs or symptoms due to radiculopathy and no other neurologic abnormalities or findings related to the thoracolumbar spine. The examiner diagnosed the Veteran with IVDS but did not feel it had caused any incapacitating episodes over the past 12 months. The Veteran currently has a 20 percent evaluation for a lumbosacral strain. He does not qualify for a 40 percent evaluation, the next highest available under the General Rating Formula for Diseases and Injuries of the Spine because the record does not show that forward flexion was limited to 30 degree or less or that there was favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a. At the VA examinations discussed above there was forward flexion to 90 degrees. Under 38 C.F.R. §§ 4.40 and 4.45, and the decision in DeLuca, supra, the Board is required to consider the Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate disability evaluation for a disability using the limitation-of-motion diagnostic codes. The Board recognizes the functional limitations that the Veteran has as a result of his service-connected lumbosacral strain, but the current disability evaluation contemplates these limitations. In this regard, at the October 2012 examination there was no objective evidence of pain on motion and no additional limitation in range of motion of the thoracolumbar spine following repetitive use testing. Indeed, the Veteran's range of motion testing on both VA examinations, noting 90 degrees of forward flexion and 30 degrees of extension, lateral flexion and rotation, does not rise to a level supporting even the 20 percent evaluation based on limitation of motion. Thus, the 20 percent evaluation presently assigned adequately contemplates the objective findings and subjective complaints, and an evaluation in excess of 20 percent is not warranted at any time during the course of the appeal. The Board also finds that an evaluation in excess of 20 percent based on IVDS is not warranted. In this regard, the record does not show that he has had incapacitating episodes that included bedrest prescribed by a physician and treatment by a physician. The October 2012 examiner diagnosed the Veteran with IVDS but did not feel it had caused any incapacitating episodes over the past 12 months. The treatment notes discussed above do not reflect that the Veteran experienced incapacitating episodes. The Veteran testified at the March 2011 hearing that the left leg bothers him every night when he is in bed and that after sleeping for a while his left leg starts cramping and wakes him. The July 2010 physical examination by his private physician revealed absent ankle and knee jerks, but found full motor strength and normal sensation to light touch. The Veteran denied weakness, numbness or paresthesias. At the September 2009 VA examination, deep tendon reflexes were somewhat diminished and a motor examination was normal, while at the October 2012 VA examination there was full muscle strength, deep tendon reflexes were normal, and there was no radicular pain. The complaints of radiating pain are contemplated in the evaluation assigned under the General Rating Formula for Diseases and Injuries of the Spine, which notes that radiating pain is considered. The objective findings from the September 2009 VA examination and July 2010 treatment, to include diminished or absent reflexes, do not reflect that his neurological symptoms rise to the level of incomplete paralysis of the sciatic nerve such that a separate compensable rating is warranted, as the Veteran had normal motor strength and intact sensory evaluation. Additionally, the September 2009 VA examiner specifically noted the Veteran had no neuropathy or radiculopathy. While the July 2010 private treatment noted that there was radiating pain, actual radiculopathy or neuropathy was not diagnosed. Furthermore, the deep tendon reflexes and lower extremity motor strength were normal at the October 2012 VA examination. Thus, the Board concludes that the Veteran's neurological complaints, to include decreased or absent reflexes, do not support a separate compensable evaluation, as such complaints and findings do not rise to the level of even mild incomplete paralysis in light of the normal motor and sensory evaluations. See 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology related to his lumbosacral spine condition, to include consideration of neurological complaints, and provides for additional or more severe symptoms, than currently shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, since the preponderance of the evidence is against the claim for a higher rating for the Veteran's lumbosacral strain, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to a disability rating higher than 20 percent for a lumbosacral strain is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs