Citation Nr: 1309239 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 10-41 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a rating in excess of 10 percent for chronic lumbosacral strain and degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from March 1988 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In February 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. Prior to September 16, 2010, the chronic lumbosacral strain and degenerative disc disease of the lumbar spine did not limit forward flexion to 60 degrees, did not result in a combined range of motion not greater than 120 degrees, did not cause muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, did not result in ankylosis, and did not have associated objective neurological abnormalities for which separate ratings can be granted. 2. Since September 16, 2010, the chronic lumbosacral strain and degenerative disc disease of the lumbar spine limits forward flexion to 30 degrees, has not resulted in ankylosis, and does not have associated objective neurological abnormalities for which separate ratings can be granted. CONCLUSIONS OF LAW 1. Prior to September 16, 2010, the criteria for a rating in excess of 10 percent for chronic lumbosacral strain and degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a Diagnostic Code (DC) 5237 (2012). 2. Since September 16, 2010, the criteria for a rating of 40 percent for chronic lumbosacral strain and degenerative disc disease of the lumbar spine have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a Diagnostic Code (DC) 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of the specific diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was notified in a letter dated in November 2009 regarding the type of evidence necessary to establish his claim. He was instructed that to show entitlement to an increased evaluation for his service-connected disability, the evidence must show that the disability has gotten worse. The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The letter also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, the letter informed the Veteran that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Regarding VA's duty to assist, VA obtained the Veteran's post-service medical records and also secured examinations in furtherance of his claim. Pertinent VA examinations were obtained in November 2009 and September 2010. 38 C.F.R. § 3.159(c)(4). The VA examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorder. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. The Veteran was also provided with a hearing related to his present claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ explained the issue on appeal, but did not note the specific criteria necessary to substantiate the increased rating claim or suggest the submission of any additional evidence. This was not necessary, however, because the Veteran volunteered his treatment history and current symptoms, thus fully describing the nature and severity of his lumbar spine disorder. He also indicated that all of his treatment had been at VA facilities. Accordingly, the Veteran is not shown to be prejudiced on this basis. The Veteran has not 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. As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. 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. Where there is a question as to which of two ratings should be applied, the higher rating 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. The Court has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App 505 (2007). As discussed in detail below, the Board concludes that a staged rating is warranted. In this case, the Veteran has been diagnosed with chronic lumbosacral strain and degenerative disc disease of the lumbar spine. This disability has been shown to cause limitation of motion of the lumbar spine. This service-connected disability is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5237, which evaluates impairment from lumbosacral strain. Since September 23, 2003, DCs 5235-5243 are rated under the General Rating Formula for Diseases and Injuries of the Spine. 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. Under the General Rating Formula, a 10 percent evaluation is for application with forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the 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, DC 5237 (2012). A 20 percent evaluation is for application with 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 for application when forward flexion of the thoracolumbar spine is 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is for application when there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is for application when there is unfavorable ankylosis of the entire spine. Id. Note (1), which follows the rating criteria, provides for the evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Based on the evidence of record, the Board concludes that a rating in excess of 10 percent prior to September 16, 2010, is not warranted. However, effective September 16, 2010, a rating of 40 percent, but no higher, is warranted. Prior to September 16, 2010, the pertinent evidence of record fails to show that the Veteran's lumbar spine range of motion approximated forward greater than 30 degrees but not greater than 60 degrees; a combined range of motion 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, which would warrant the next higher rating of 20 percent. During this period, the Veteran's forward flexion had been shown to be no worse than 77 degrees at a November 2009 VA examination. His combined range of motion at that examination exceeded 120 degrees. Although the examination showed pain on motion, even with such pain, the Veteran was able to forward flex to 77 degrees and had combined motion greater than 120 degrees. There was no additional loss of motion following repetition. Although the Veteran reported having pain rated as nine on a scale of one to ten (9/10), he was gainfully employed as a barber and could do his job appropriately for the most part. There were times when he had difficulty standing for long periods, which affected his productivity because he had to sit down and rest and his concentration was effected. However, he denied that his activities of daily living were affected and also denied flare-ups. No assistive devices were used. The examiner did not indicate that the Veteran's limited motion, even with pain, approximated forward flexion greater than 30 degrees but not greater than 60 degrees or a combined range of motion not greater than 120 degrees. The examination also fails to show muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. None of the Veteran's pertinent treatment records during this period indicate that he had limited motion warranting a 20 percent rating or that he had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Thus, the evidence does not indicate that a rating in excess of 10 percent based on limitation of motion is warranted prior to September 16, 2010. In reaching this conclusion, the Board has considered whether the Veteran's painful motion contributes to the actual limitation of motion such that an increased rating is warranted for this period. Here, even when taking into account the pain on use experienced by the Veteran, the Board finds that an increased rating for limitation of motion for this time period is not warranted. See 38 C.F.R. § 4.40 (a little used part of the musculoskeletal system due to pain may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like). As noted above, the November 2009 examiner specifically found that the Veteran did not have additional loss of motion following repetition. No evidence of disuse such as atrophy was noted. This VA examination report reflects that the Veteran's pain on motion and the functional loss it resulted in were taken into account. Accordingly, the criteria for a rating in excess of 10 percent for limitation of motion for the Veteran's service-connected chronic lumbosacral strain and degenerative disc disease of the lumbar spine prior to September 16, 2010, have not been met. 38 C.F.R. § 4.71a, DC 5237. However, the Veteran's limitation of motion has been shown to meet the criteria for a 40 percent rating effective September 16, 2010. At a VA neurological examination on September 16, 2010, the examiner reported that with flexing at the waist without bending the knees, the Veteran was able to bend about 30 degrees and no further because of pain. As noted above, a 40 percent rating is warranted for forward flexion limited to 30 degrees or less. Since the examiner reported that the Veteran had flexion to about 30 degrees, when affording the Veteran the benefit-of-the-doubt, the Board concludes that a rating of 40 percent, but no higher, is warranted. In reaching the conclusion that a 40 percent rating is warranted since September 16, 2010, the Board acknowledges that at his February 2011 hearing, the Veteran testified that he might be able to forward flex far enough to touch his knees, suggesting that flexion is not limited to 30 degrees or less. February 2011 Hearing Transcript (T.) at 5. However, the Veteran also testified that he could only walk less than 20 to 25 feet and had constant pain that required him to sit down and take breaks between giving each haircut at his job as a barber. Id. at 4-5. He also testified about having to take pain medication daily as well as missing several days of work. Id. at 7. Considering the functional impairment reported by the Veteran at his hearing, the Board concludes that the Veteran's limitation of motion more nearly approximates the criteria for a 40 percent rating, but no higher, since September 16, 2010. In finding that a rating higher than 40 is not warranted, the next higher rating of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. The evidence does not show, nor does the Veteran contend, that he has unfavorable ankylosis or that any limitation in motion approximates unfavorable ankylosis. Therefore, a rating higher than 40 percent is not warranted for this time period. In reaching the conclusion that a rating higher than 40 percent is not warranted from September 16, 2010, the Board has considered whether the Veteran's painful motion contributes to the actual limitation of motion such that an increased rating is warranted. Here, even when taking into account the pain on use experienced by the Veteran, the Board finds that a rating higher than 40 percent increased rating for limitation of motion is not warranted. See 38 C.F.R. § 4.40. The September 2010 VA examination and VA treatment records do not show any evidence of disuse. Furthermore, for the reasons set forth above, the 40 percent rating takes into account the Veteran's functional impairment such as limitations in walking and needing to sit and rest at work. The VA examination report reflects that the Veteran's pain on motion was taken into account, while the Veteran's hearing testimony addressed functional impairment. Accordingly, the criteria for a rating in excess of 40 percent for limitation of motion for the Veteran's service-connected chronic lumbosacral strain and degenerative disc disease of the lumbar spine from September 16, 2010, have not been met. 38 C.F.R. § 4.71a, DC 5237. Additionally, based on the evidence of record, the Board concludes that associated objective neurologic abnormalities for which a separate rating can be granted have not been shown. The evidence does not show associated neurologic abnormalities. The Board acknowledges that throughout this appeal, the Veteran has reported having radiating pain to his legs as well as numbness of his lower extremities. See, e.g., September 2010 VA examination. However, objective evidence of a neurologic abnormality has not been shown. A VA treatment record in October 2009 shows that the Veteran had motor strength of 5/5 and his sensation was intact and symmetrical. He also had patellar deep tendon reflexes of 2+ bilaterally and toes were downgoing bilaterally. At the November 2009 VA examination, the Veteran was again shown to have motor strength of 5/5 in all extremities with normal sensation and normal symmetric deep tendon reflexes. His gait was normal. Straight leg raise was negative bilaterally. A May 2010 VA treatment record again showed that motor strength was 5/5 and deep tendon reflexes were 2+ throughout. At the September 2010 VA examination, the Veteran dragged his left leg; deep tendon reflexes were 2+ for both knees and both ankles; dorsiflexion of the foot did not elicit back pain; and straight leg raising elicited stabbing back pain bilaterally. The Veteran reported decreased sensation mostly in a stocking distribution in the left foot much more so than on the right. However, the examiner opined that there was no objective clinical or radiographic evidence of radiculopathy. In this case, the Veteran's pertinent treatment records and VA examinations fail to show any associated neurologic abnormalities, despite the Veteran's complaints of pain and numbness in his lower extremities. Indeed, the Veteran testified that no doctor had mentioned him having myelopathy or neuropathy. T. at 9. As noted above, the Veteran has repeatedly shown normal strength and deep tendon reflexes. The only medical opinion of record, that of the September 2010 examiner, indicates that the Veteran does not have radiculopathy. Therefore, the Board concludes that separate ratings for associated neurologic abnormalities are not warranted. For these reasons, the Board finds that the criteria for a rating in excess of 10 percent prior to September 16, 2010, for chronic lumbosacral strain and degenerative disc disease of the lumbar spine have not been met. However, a rating of 40 percent, but no higher, from September 16, 2010, have been met. Furthermore, the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability. 38 C.F.R. § 4.1. The Board notes that in exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the Veteran's lumbar spine symptoms and disability level. Marked interference with employment beyond that contemplated by the schedular criteria has not been shown. The record does not reflect a disability picture that is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability. The evidence does not show that the Veteran's lumbar spine disability has resulted in interference with employment or activities of daily life which would a warrant rating in excess of 10 percent prior to September 16, 2010, and in excess of 40 percent from September 16, 2010, for this disability. Moreover, as the Veteran has not contended, nor does the evidence show that his disability renders him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER A 40 percent rating is granted for chronic lumbosacral strain and degenerative disc disease of the lumbar spine effective from September 16, 2010. To this extent only, the appeal is allowed. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs