Citation Nr: 1309262 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 08-29 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability for the period from January 1, 2005, to November 25, 2010, and a rating in excess of 20 percent for the period beginning November 26, 2010. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Ann L. Kreske, Counsel INTRODUCTION The Veteran served on active duty from March 1982 to December 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating actions by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. In a March 2005 rating decision, the RO, in pertinent part, granted service connection for a low back disorder and assigned a noncompensable rating, effective January 1, 2005. In a May 2006 rating decision, the RO increased the evaluation for the service-connected low back disorder from noncompensable to 10 percent, effective April 6, 2006. In September 2010, the Board remanded this matter for further evidentiary development. Thereafter, in a November 2011 rating decision, the RO increased the rating for the Veteran's service-connected low back disorder from noncompensable to 10 percent, effective January 1, 2005, the date of receipt of the Veteran's original claim for service connection; and to 20 percent, effective November 26, 2010. FINDINGS OF FACT 1. From January 1, 2005, to November 25, 2010, the Veteran's lumbar spine disability was manifested by subjective complaints of constant pain and forward flexion of more than 60 degrees; there was no evidence of muscle spasm severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; there were no incapacitating episodes as defined by regulation. 2. As of November 26, 2010, the lumbar spine disability has been manifested by forward flexion of the thoracolumbar spine greater than 30 degrees, muscle spasms and guarding severe enough to result in an abnormal gait or abnormal spinal contour, lack of stamina, and weakness or fatigue; there was no evidence of additional limitation of motion or ankylosis of the entire thoracolumbar spine or of the entire spine; there were no incapacitating episodes as defined by regulation. CONCLUSIONS OF LAW 1. From January 1, 2005, to November 25, 2010, the criteria for an initial rating higher than 10 percent for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012). 2. As of November 26, 2010, the criteria for a rating higher than 20 percent for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (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). In cases, as here, where an increased-rating claim arose in another context, namely, the Veteran trying to establish her underlying entitlement to service connection, and the claim was subsequently granted and she has appealed a downstream issue such as the initial disability rating assigned, the underlying claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because its initial intended purpose has been fulfilled. See Goodwin v. Peake, 22 Vet. App. 128 (2008). Thereafter, once a notice of disagreement (NOD) has been filed - for example, contesting a "downstream" issue such as the initial rating assigned for a disability - the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim. Id.; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003). The Veteran received this required statement of the case (SOC) (and supplemental SOCs (SSOCs)) discussing this downstream element of her claim for a higher initial rating for a low back disorder and citing the applicable statutes and regulations. Next, VA has a duty to assist the Veteran in the development of her claim. This duty includes assisting her in the procurement of service treatment records and other pertinent medical records and providing an examination when necessary. 38 C.F.R. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained and associated with the claims file, including the Veteran's electronic file, the Veteran's service treatment records, records of her post-service VA and private treatment, and VA examination reports. Finally, the Board remanded the Veteran's claim in September 2010 for the RO/AMC to obtain any outstanding treatment records dated since 2008, and to schedule the Veteran for a VA examination. A review of the Veteran's claims folder and electronic folder reflects that such records have been obtained, and that a VA examination was provided to the Veteran in November 2010. The November 2010 VA examination also substantially complies with the Board's September 2010 remand directives as it responded to the questions posed by the Board. Thus, given that the AMC followed the Board's remand directives by completing them, the Board finds substantial compliance with its September 2010 remand instructions. See D'Aries, 22 Vet. App. at 105. As the requested development has been completed, the case may proceed without prejudice to the Veteran. Stegall v. West, 11 Vet. App. 268 (1998). II. Lumbar Spine Disorder Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Further, examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran is presumed to be seeking the maximum benefit allowed by law and regulation. AB v. Brown, 6 Vet. App. 35, (1993). 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). Thus, the analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The U.S. Court of Appeals for Veterans Claims (Court) clarified that, although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The Mitchell Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). By a rating decision in March 2005, the RO granted service connection for a low back disability and assigned a noncompensable disability rating, effective January 1, 2005, the day after the Veteran's retirement from service. The Veteran appealed for a higher disability rating. In a rating decision in May 2006, the RO increased the rating of the service-connected lumbar spine disability from noncompensable to 10 percent, effective April 4, 2006. Finally, in a rating decision in November 2011, the RO increased the Veteran's disability rating for a lumbar spine disability to 10 percent, effective January 1, 2005; and to 20 percent, effective November 26, 2010. The Veteran appealed for higher ratings. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243. The Veteran's service-connected lumbar spine disability is rated under the General Rating Formula (General Formula) for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted 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. A 20 percent rating is warranted 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 rating of 40 percent is warranted where there is forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2012). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2 (2012). Intervertebral Disc Syndrome may be rated on the bases of incapacitating episodes, which are defined as 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. A 10 percent evaluation is assigned with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. The next higher 40 percent rating is assigned with incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks during the past 12 months. Diagnostic Code 5243. Entitlement to an Initial Rating in Excess of 10 Percent from January 1, 2005, to November 25, 2010 A review of the claims file shows that the Veteran complained of, and was treated for, low back pain on several occasions during service. On her separation examination report dated in September 2004, it was noted that she had osteoarthritis of the low back. The Veteran was provided a VA examination in November 2004. She stated that she had had low back pain for several years without clear trauma or trigger. She had no neurologic symptoms, and her pain did not interfere with walking or sitting. Examination of the low back showed no deformities, minimal tenderness over the S-I joint area, and no swelling. Range of motion of the lumbar spine was normal. An April 2006 VA examination report noted complaints of back pain. Range of motion testing showed 90 degrees in flexion, 30 degrees in right and left bending, 10 degrees in extension, and 5 degrees in right and left rotation. Straight leg raising was negative, and there were no reflex, sensory, or motor defects in the lower extremities. There was no weakness. The Veteran had good gluteal tone, and the pelvis was level. The spine was straight, and there was no paralumbar spasm. Repeated motion did not cause an increase in pain, decrease in range of motion, fatigability, weakness, lack or endurance, or incoordination. X-rays of the spine were normal. The diagnosis was lumbar spine pain of unknown etiology. A magnetic resonance imaging (MRI) of the spine from Coastal Orthopaedic & Sports Medicine Center, dated in March 2007, showed a disc bulge at L4-5. A February 2008 MRI, also conducted by Coastal Orthopaedic & Sports Medicine Center, showed mild disc bulging at L4-5 with superimposed small right inter-foraminal herniated nucleus pulposus. Another VA examination was provided in April 2007. The Veteran complained of moderate sharp, twisting, and burning pain in the lower back; and stiffness. She stated that the duration of the pain was hours and that it occurred one to six days a week. She also experienced severe flare-ups every three to four months and that lasted from three to seven days. The Veteran was able to walk one to three miles. On examination, there was no spasm, atrophy, guarding, or weakness, but there was pain with motion and tenderness. Detailed motor and sensory examinations were normal. Range of motion testing of the spine showed 90 degrees in flexion, with pain at 70 degrees; 30 degrees in extension, with pain at 20 degrees; 30 degrees in left and right lateral flexion, with pain at 20 degrees; and 30 degrees in left and right lateral rotation, with pain at 30 degrees. There was no pain after repetitive use and no additional loss of motion on repetitive use. X-rays of the spine showed a normal spine. The diagnosis was chronic sprain/strain of the lower back. The examiner noted that the Veteran was employed full-time as a secretary and had been in this position for one to two years. She had lost less than one week of work time due to colds and other unrelated illnesses. Her low back disability had no significant effects on her usual occupation or her daily activities. Thereafter, a March 2010 letter from Dr. E. J. Rosario stated that he had treated the Veteran for low back pain and bilateral leg numbness and tingling since February 2007. Work-up and evaluation revealed right-sided herniated disc at L4-5, and clinical signs and symptoms included positive straight leg raising and severe bilateral lumbosacral spasm. Based on the evidence above, the Board finds no time during the period of January 1, 2005, to November 25, 2010, when symptoms of the Veteran's lumbar spine disability was of such nature and gravity as to warrant a rating in excess of 10 percent. Incapacitating episodes as defined by regulation has not been shown, thoracolumbar forward flexion consistently has been greater than 60 degrees (even with consideration of range of motion with pain and after repetitive range of motion testing), and the combined ranges of motion have consistently exceeded 120 degrees. Additional factors that could provide a basis for an increase have also been considered. However, it is not shown that the Veteran has any functional loss beyond that being currently compensated during this period. 38 C.F.R. §§ 4.10, 4.40, 4.45; DeLuca, 8 Vet. App. at 205. While there has been evidence of muscle spasm, it has not been shown to be severe enough to result in an abnormal gait or spinal contour. Significantly, examination has found no increase in impairment of function with repetitive testing (i.e., on use). Consequently, the next higher (20 percent) rating is not warranted under the General Rating Formula. There is no evidence that the spine is ankylosed. The Board notes the Veteran's complaints of numbness and tingling in her lower extremities. However, service connection for radiculopathy of the lower extremities was granted in November 2011, effective January 1, 2005. Therefore, the Board will not address these issues further, as the Veteran has not expressed disagreement with these ratings. Entitlement to an Initial Rating in Excess of 20 Percent Since November 26, 2010 The RO increased the Veteran's disability rating to 20 percent, effective November 26, 2010. On VA examination in November 2010, the Veteran complained of chronic low back pain, with weekly flare-ups that lasted one to two days. She alleged that she was completely disabled during a flare-up. She reported paresthesias and numbness, as well as fatigue, decreased motion, stiffness, weakness, spasm, and chronic low back pain. She used no assistive device and was able to walk 1/4 of a mile. Examination of the spine showed spasms, guarding, pain with motion, and tenderness on the left side severe enough to cause abnormal gait or abnormal spinal contour. Range of motion testing showed 50 degrees in flexion, 10 degrees in extension, 15 degrees in left and right lateral flexion, and 30 degrees in left and right lateral rotation. There was evidence of pain following repetitive motion, but no evidence of additional limitation of motion after repetitive use. X-ray taken of the spine showed it to be normal. An MRI of the spine showed mild disc bulging at L4-L5 with superimposed small right inter-foraminal herniated nucleus pulposus. The Veteran continued to be employed full-time as a secretary. She had lost approximately three weeks of time in the past 12 months due to severe low back pain. The low back pain caused decreased mobility, problems with lifting and carrying, lack of stamina, weakness or fatigue, decreased strength in the lower extremity, and pain. Subsequent VA treatment records show no complaints pertaining to the lumbar spine. Based on the evidence above, the Board finds no time since November 26, 2010, when symptoms of the Veteran's lumbar spine disability was of such nature and gravity as to warrant a rating in excess of 20 percent. Incapacitating episodes as defined by regulation has not been shown, thoracolumbar forward flexion has been shown to be more than 30 degrees, with no additional limitation of motion after repetition. There also was no evidence of ankylosis of the thoracolumbar spine or of the entire spine. Additional factors that could provide a basis for an increase have also been considered. While it has been shown that the Veteran has muscle spasm, guarding, and tenderness severe enough to result in an abnormal gait; decreased mobility; lack of stamina; and weakness or fatigue, there is no functional loss beyond that being currently compensated during this period. The Board notes that, while the Veteran alleged weekly flare-ups that lasted one to two days and that completely incapacitated her (which would total at least seven weeks), she also reported only three weeks of lost time from work in the past 12 months. 38 C.F.R. §§ 4.10, 4.40, 4.45; DeLuca, 8 Vet. App. at 205. Consequently, the next higher rating of 40 percent is not warranted under the General Rating Formula. Furthermore, as the criteria for the 10 percent rating assigned for the period of January 1, 2005, to November 25, 2010, and the criteria for the 20 percent rating assigned for the period as of November 26, 2010, encompass the greatest degrees of severity of the Veteran's lumbar spine disability shown during these two time periods, respectively, the Board finds that further "staged" ratings are not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 10 percent for the lumbar spine disability from the period of January 1, 2005, to November 25, 2010. The Board further finds that the evidence is against the assignment of a rating higher than 20 percent for the lumbar spine disability as of November 26, 2010. Therefore, the claim for higher ratings is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extra-Schedular Consideration The Board has also considered whether an extra-schedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extra-schedular 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. This means that, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. When the an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's disability. The Veteran's main symptoms are pain, limitation of motion, muscle spasms, and guarding, all of which are contemplated in the ratings assigned. As the schedular ratings adequately contemplate the Veteran's disabilities, referral for extra-schedular consideration is not warranted. ORDER The claim of entitlement an initial rating in excess of 10 percent for a lumbar spine disability from January 1, 2005, to November 25, 2010, and a rating in excess of 20 percent since November 26, 2010, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs