Citation Nr: 1307936 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 09-40 915 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE What rating is warranted for a low back strain from September 21, 2006? REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1981 to July 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which granted service connection for a low back strain, and assigned a 10 percent rating. In a November 2011 rating decision VA increased the rating to 20 percent, effective September 21, 2006. The case was certified to the Board by the Chicago, Illinois RO. FINDING OF FACT Since September 21, 2006, the Veteran's low back strain has not been manifested by ankylosis, forward flexion of the thoracolumbar spine to 30 degrees or less, or by incapacitating episodes of at least 4 weeks, but less than 6 weeks, during any 12 month period. CONCLUSION OF LAW Since September 21, 2006 the Veteran's low back strain has not met the criteria for a rating greater than 20 percent. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and has been afforded at least two VA examinations for his spine disability. Concerning private medical records, VA made two attempts to obtain records from Dekalb County Orthopaedics, and only received a single document from August 1988. The Veteran has indicated, however, that his only treatment from that provider occurred in August 1988, and there has been no suggestion from the claimant or from Dekalb County Orthopaedics that the records provided are incomplete. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c) (2012). Disability Ratings Disability ratings are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where service connection has been granted and the assignment of an initial rating is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where there is a question as to which of two ratings 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. See 38 C.F.R. § 4.7; see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it 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 seriously disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. Spine disorders are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under this formula, 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. 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. 38 C.F.R. § 4.71a. 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 rating, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. Id. For VA compensation purposes, 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, General Rating Formula, Note 2. Further, all measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note 4. Separate ratings for associated neurologic abnormalities are appropriate where there is objective evidence of disability. 38 C.F.R. § 4.71a, General Rating Formula, Note 1. Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is in flexion or extension, and the ankylosis results in one 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; and/or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) is considered favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula, Note 5. Under the rating schedule, where a spine disability is manifested by an intervertebral disc syndrome, the disc disease may be rated based on limitation of motion, as delineated above, or based on the cumulative amount of time in which the condition was incapacitating over the prior 12 months. 38 C.F.R. § 4.71a. For a 40 percent rating based on incapacitating episodes, the evidence must demonstrate that the Veteran experienced incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past twelve months. 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." Id. at Note 1. At his March 2007 VA examination, the Veteran reported constant low back pain rated at least 1/10. The pain radiated into his lower legs, and he occasionally experienced numbness and tingling in his buttocks. He denied lower extremity weakness, urinary incontinence, or difficulty walking. He reported flare-ups triggered by physical activity that could occur as often as daily, and which lasted as long as several minutes. Flare ups were alleviated with rest. Pain levels during the flares were 10/10. When flares occurred at work he would have to take a break. Concerning the impact on his daily life, the appellant stated that his back pain limited his ability to dress, and to lift heavy objects at work. At times, he called in sick when his back was "out." He denied incapacitating episodes requiring hospitalization during the previous year. On physical examination, the Veteran demonstrated forward flexion to 80 degrees without pain, bilateral bending and rotation were to 35 degrees without pain, and extension was to 10 degrees with significant terminal pain. Range of motion was not decreased with repetitive testing, and there was no additional functional impairment due to pain, pain on repetitive use, fatigue, weakness, lack of endurance, or incoordination. The examiner opined that he was unable to address the appellant's range of motion during flares without resorting to speculation. Straight leg raising was negative bilaterally. He demonstrated 5/5 muscle strength bilaterally. Sensation was present in both lower extremities. Patellar tendon reflexes were 1+. X-rays showed degenerative changes between the L3 and L4 spinous processes. At the time of the examination, the Veteran reported working as a manufacturing engineer; a job that required 50 percent desk work and 50 percent walking. The appellant informed the examiner that he had once been denied a job as a janitor due to low back pain. The examiner stated that the severe low back strain limited the Veteran "significantly" at his work. An October 2009 treatment note indicated that the Veteran had lower back pain rated at 3/10, without radiation. He had no neurological or urological symptoms, and was receiving good results from the physical therapy he completed at home. He was diagnosed with multilevel degenerative disc disease, and grade one anterior spondylolisthesis of L5 on S1 with likely L5 spondylolysis. VA provided a second examination of the Veteran's disability in April 2011. He reported that while at rest, his pain was between 2/10 and 4/10, but could reach 10/10 during flare-ups. Flare-ups reportedly occurred as frequently as once a month, and severe symptoms could last a few hours. His pain reportedly worsened when he was fatigued from overworking during the day, after falls or accidents, or from sitting for long periods of time. Pain did not radiate down to his feet. He reported stiffness, spasms, decreased motion, and occasional right leg paresthesias that did not pass the knee. He denied bowel or bladder incontinence. The Veteran experienced one incapacitating episode over the previous year, following an accident in which he fell on the ice; during that episode, he missed work due to severe pain. On physical examination, the Veteran demonstrated neither tenderness to palpitation nor paraspinal muscle spasm. He showed forward flexion to 70 degrees, extension to 5 degrees, and 10 degrees of lateral flexion and lateral rotation in each plane. He experienced pain at all ranges of motion of the spine. Repeated testing did not produce any change in the range of motion, or exacerbation of painful symptoms or fatigue, although the examiner noted "a great deal of discomfort" during testing. The appellant's functional impairment was not additionally limited due to pain, fatigue, weakness, lack of endurance, or incoordination. The examiner opined that he could not address the spine range of motion during flares without resorting to speculation. Straight leg tests were negative bilaterally, and his reflexes were 2+ and symmetric at the knees and ankles. His sensation to light touch was intact, and he had 5/5 muscle strength in his lower extremities. The examiner noted that the appellant's gait was somewhat guarded, consistent with low back pain. X-rays showed very mild degenerative disc disease, with mild narrowing at the L4-L5 interspace and moderate narrowing at the L5-S1 interspace, with very slight grade 1 spondylolisthesis of L5 on S1. There was a contact point between the spinous processes of L3 and L4. The Veteran reported working as a manufacturing engineer, doing factory work. He was able to cook, clean, and dress himself independently, but those activities were limited during flares. He had no limits on his walking distance. As discussed above, to warrant a 40 percent rating, the Veteran's disability would need to be manifested by ankylosis, or a limitation of forward thoracolumbar flexion to 30 degrees or less. Despite the fact that the Veteran has pain in his range of motion, which is accounted for in the General Rating Formula, he has consistently demonstrated forward flexion of the thoracolumbar spine to between 70 and 80 degrees. There is no evidence of thorocolumbar ankylosis. As such, objective testing preponderates against finding entitlement to a rating higher than 20 percent for the Veteran's low back strain. 38 C.F.R. § 4.71a. The Board has considered the Veteran's lay assertions concerning his low back strain, but finds that those statements do not support a rating higher than the current 20 percent rating assigned. The Board acknowledges the Veteran's October 2009 argument that he meets the criteria for a 30 percent evaluation based on a limited range of forward flexion to 15 degrees following incapacitating exacerbations caused by work activities, daily activities, or mishaps, such as stepping in a hole, tripping, or slipping on ice. During these incapacitating episodes, he allegedly experiences pain, muscle spasms, and stiffness. The Board first notes that the Veteran's specific assertion that his disability warrants a 30 percent rating would require that his disability as a cervical disorder rather than a lumbar disorder; the General Rating Formula only assigns a 30 percent rating for cervical spine symptoms. Id. Although the Veteran's term "incapacitating exacerbation," as used in his October 2009 argument is similar to "incapacitating episode," see 38 C.F.R. § 4.71a, Diagnostic Code 5243, it is clear that the Veteran has not had symptoms meeting the rating criteria for "incapacitating episodes" as that term is defined by regulation. 38 C.F.R. § 4.71a. There is no evidence that the Veteran has required treatment by a physician and physician prescribed bed rest due to his claimed exacerbations. Similarly, the "incapacitating episode" he identified at his April 2011 examination also did not meet the criteria to be considered an incapacitating episode under the Formula for Rating Intervertebral Disc Syndrome. Nevertheless, viewing the evidence in a light most favorable to the Veteran, there is no suggestion that he experienced more than four weeks of incapacitating episodes during any twelve-month period during the appeal. He has only reported a single incapacitating episode, that being reflected in the April 2011 examination report, in which the Veteran reported falling on ice and experiencing severe low back pain. At his March 2007 examination, he denied having incapacitating episodes. Id. The Veteran is generally competent to report that he experiences additional pain and limited motion during his "incapacitating exacerbations" and flare-ups. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Importantly, however, the Veteran is not competent to provide the specific finding that his back range of motion is at times limited to less than 15 degrees; there is no suggestion that this figure was obtained via objective testing. VA prescribes the use of a goniometer to obtain accurate measurement of ranges of motion; the use of such a device is "indispensable." 38 C.F.R. § 4.46 (2012). As such, his statement that his forward flexion was limited to 15 degrees is not probative, and other than as evidence that he experiences some additional limitation of motion during flare-ups, will be disregarded. Taking the lay evidence of flare-ups into account, the Veteran's disability still does not meet the criteria for entitlement to a rating higher than 20 percent for a low back strain. In October 2009, he stated that flare-ups produced muscle spasms, stiffness, and pain. He informed the April 2011 examiner that some activities of daily living, such as his ability to cook, clean, and dress himself independently, were "limited to some degree" during flare-ups, and that flare-ups caused "additional limitation of motion and functional impairment." In March 2007, he stated that he had to rest during flare-ups, and that he had occasionally called in sick when his back was "out." The flare-ups, when frequent (March 2007), only lasted minutes, and when less frequent (April 2011), only lasted a few hours. Taken together, nothing in the lay evidence presented by the Veteran suggests that his back disability limits his forward flexion of the thoracolumbar spine to 30 degrees or less. Based on the foregoing, the Board finds that the Veteran's low back strain most closely approximates the criteria for a rating of 20 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Board also finds that the records do not demonstrate a neurological disorder due to his low back strain. 38 C.F.R. § 4.71a, General Rating Formula, Note 1. Although the Veteran has complained of some radiating pain, the General Rating Formula is to be applied regardless of whether there is pain, or whether pain radiates. The Veteran did report occasional numbness and tingling in his buttocks at the March 2007 examination, but neurological testing, including straight leg raising tests to determine sensation to light touch, and tests of muscle strength were all normal. Additionally, the appellant denied urinary incontinence. There were slightly reduced 1+ patellar tendon reflexes, but there is no suggestion that the mild reduction is associated with the Veteran's back disability. The October 2009 outpatient assessment reported no neurological or urological symptoms due to his low back strain. Similarly, at the April 2011 examination, straight leg raise tests were negative bilaterally, he had normal sensation to light touch, muscle strength was 5/5, and he had normal, 2+ reflexes throughout the lower extremities. There was also no bowel or bladder incontinence. In short, there is no objective evidence of any neurological disability associated with the low back strain, and as such, a separate rating for a neurological condition is not warranted. Id. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b). Extraschedular The symptoms presented, during the periods of time addressed in this decision, by the Veteran's low back strain are fully contemplated by the rating schedule. There is no evidence his disability picture is exceptional when compared to other Veterans with the same or similar disability. There is no evidence at any time during the appeal that the Veteran's back disorder necessitated frequent hospitalization. Throughout the appeal, the Veteran has been working as an engineer. While the evidence does suggest that the Veteran experiences some level of interference with employment, such as having to take breaks or having to take time off when his back flares up, and that he has had to call in sick on occasion when his back is "out," there is no suggestion that his low back strain creates an unusual disability picture. In this regard, the rating schedule takes into account some impairment in earnings capacity due to disability. 38 C.F.R. § 4.1. Notably, however, the rating schedule provides a basis for an increased rating, however, as demonstrated on repeated examinations the appellant does not meet those requirements. Based on the impairment described, it is clear that the rating schedule is adequate in this instance. Thus, the Board finds no evidence warranting a referral of this claim for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). Total Rating for Compensation Purposes Based on Individual Unemployability (TDIU) The Court has held that entitlement to a total disability evaluation based on individual unemployability is an element of all appeals for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a total disability evaluation based on individual unemployability is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Throughout the period on appeal, the Veteran has been working as an engineer. While the evidence shows occasional missed work, there is no suggestion of unemployability. As such, the question of entitlement to a total disability evaluation based on individual unemployability is not raised under Roberson and Rice. ORDER Entitlement to an evaluation in excess of 20 percent for a low back strain from September 21, 2006, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs