Citation Nr: 1309728 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 10-19 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a disability rating in excess of 40 percent for degenerative disc disease with lumbosacral strain. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1964 to June 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in October 2009 of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that denied the Veteran's claim for an increased rating. The Veteran's May 2010 Substantive Appeal reflects that he requested a Travel Board hearing. In August 2010, however, the Veteran withdrew his hearing request. The Veteran underwent a VA examination in December 2012; this examination was performed subsequent to the issuance of the last supplemental statement of the case, and it was not reviewed by the RO. In August 2012, however, the Veteran provided a waiver for the Board to view any new evidence in the first instance. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's low back disability does not result in unfavorable ankylosis of the thoracolumbar spine or in incapacitating episodes. CONCLUSION OF LAW The criteria for a disability rating in excess of 40 percent for degenerative disc disease with lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.655, 4.1-4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes (DC) 5236-5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. An August 2009 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b)(1). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a July 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield, 444 F.3d at 1333-34. The Veteran's service treatment records and VA medical treatment records have been obtained; he did not identify any private treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in September 2009, June 2012, and December 2012; the Veteran did not comment on the June 2012 and December 2012 examinations. In his November 2009 Notice of Disagreement, the Veteran stated that he did not feel that the September 2009 VA examination was adequate, stating that the examination was short and did not mention that he wore a back brace. Upon reviewing the examination, the Board finds it adequate for rating purposes. The examiner did mention that the Veteran uses a back brace and cane for his back disability, and the examination itself contains sufficient information to rate the Veteran under the applicable Diagnostic Code. As the other two examinations contain similar information, they too are considered adequate. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). II. Increased Rating for a Lumbar Spine Disability 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. The Veteran is currently evaluated under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5243, covering intervertebral disc disease. Either of two sets of criteria may be applied. The disc disease may be rated based on the cumulative amount of time in which the condition was incapacitating over the prior 12 months, or based upon the degree of limitation of motion. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months are assigned a 40 percent rating, and incapacitating episodes having a total duration of at least 6 weeks during the past 12 months are assigned a 60 percent rating. 38 C.F.R. § 4.71a, DC 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." 38 C.F.R. § 4.71a, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. The Veteran's degenerative disc disease of the lumbar spine may also be evaluated pursuant to the General Rating Formula for Diseases and Injuries of the Spine. 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. Under that Formula, 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 evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a, DCs 5235-5242. 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, Code 5237, Note 2. All measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, Code 5237, Note 4. 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). 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). The possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, 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. See 38 C.F.R. §§ 4.40, 4.45. 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. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran underwent a VA examination in September 2009. He reported suffering from fatigue, decreased motion, stiffness, weakness, spasms, pain, and flare-ups with regard to his low back. Upon examination, the Veteran was reported to have a stooped posture and to use a cane for ambulation. He had lumbar flattening, but not ankylosis or any other abnormal spinal curvature. He had no spasms, atrophy, guarding, tenderness, or weakness, but he did have pain with motion. Range of motion testing revealed that the Veteran had flexion of 50 degrees, extension of 20 degrees, left and right lateral flexion of 30 degrees each way, and left and right lateral rotation of 30 degrees each way. Repetitive motion did result in pain and loss of range of motion, limiting his flexion to 40 degrees. The Veteran underwent a second VA examination in June 2012. The Veteran contended that his condition had deteriorated since his previous examination. He reported suffering from flare-ups every two to three days. Upon examination, the Veteran was found to have tenderness over his right lumbar area. He had guarding or muscle spasm that resulted in an abnormal gait and an abnormal spinal contour. He had no muscle atrophy, and full strength in all movements except for knee extension (which was rated as 4/5). The Veteran was not reported to have any incapacitating episodes over the prior 12 months. He did use a brace and a cane for ambulation. Range of motion testing revealed forward flexion of 30 degrees with pain beginning at 20. He had extension of 5 degrees with pain at 5. He had right lateral flexion of 20 degrees, and left lateral flexion of 10 degrees. He head right and left lateral rotation of 15 degrees each way without pain. His range of motion was not changed with repetitive motion, but repetitive motion did result in less movement, weakened movement, incoordination, pain, instability, and interference with sitting, standing, or weightbearing. Most recently, the Veteran underwent a VA examination in December 2012. The Veteran reported wearing a back brace at all times. He reported suffering from flare-ups every two to three days, which he alleviated by rest and medication. Upon examination, the Veteran's back was not tender. He did have spasms or guarding severe enough to result in an abnormal gait and an abnormal spinal contour. The Veteran was not reported to have any incapacitating episodes over the previous 12 months. Range of motion testing revealed forward flexion of 50 degrees with pain beginning at 40. He had extension of 10 degrees with pain at 10. He had right lateral flexion of 20 degrees with pain at 15, and left lateral flexion of 20 degrees with pain at 15. He head right and left lateral rotation of 25 degrees each way without pain. His range of motion was not changed with repetitive motion, but repetitive motion did result in less movement, weakened movement, incoordination, pain, instability, and interference with sitting, standing, or weightbearing. In letters to VA, the Veteran has described his current symptomatology. In his August 2009 claim, the Veteran stated that his back condition had worsened to the point where it was affecting his activities of daily living; he also stated that he suffered from radiculopathy. In his November 2009 Notice of Disagreement, the Veteran again contended that his condition had worsened. In his May 2010 Substantive Appeal, the Veteran stated that he suffers from flare-ups and that his condition is affecting his quality of life. Under the applicable Diagnostic Code, to warrant an increased rating under the General Rating Formula for Diseases and Injuries of the Spine, the evidence would have to show that the Veteran has unfavorable ankylosis of the thoracolumbar spine. The Veteran's spine has never been found to be ankylosed, so an increased rating under this formula is not warranted. To warrant an increased rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the Veteran would have to have incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. The evidence does not show, however, that the Veteran has ever had any incapacitating episodes as defined by the Code, so an increased rating under this provision is also not warranted. The Veteran's disability is not so severe as to warrant an extraschedular rating. An extraschedular rating may be applied in exceptional cases involving marked interference with employment or frequent hospitalizations. 38 C.F.R. § 3.321 (2012). The applicable rating criteria here are adequate to evaluate the Veteran's disability. The evidence shows that the Veteran's service-connected back disability results in limitation of motion, pain, and other functional impairments. These impairments, however, are not more severe than the symptoms described by the 40 percent rating assigned. Further, the Veteran has been separately service-connected for the radiculopathy from which he suffers secondary to his back disability. The Veteran's symptoms are thus provided for in the applicable rating criteria. As the first threshold is not met the Board's inquiry is ended. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The preponderance of the evidence is against the claim for an increased rating for a low back disability; there is no doubt to be resolved, and an increased rating for a low back disability is not warranted. ORDER Entitlement to a disability rating in excess of 40 percent for degenerative disc disease with lumbosacral strain is denied. REMAND A TDIU claim is part of an increased rating claim when it is raised by the record. Rice v. Shinseki 22 Vet. App. 447 (2009). In his June 2012 VA examination, the Veteran stated that he retired from his previous part time job because he could no longer perform his duties on account of his back pain. The issue has thus been raised by the record. For two reasons, this claim must be remanded. First, the Veteran must be provided with notice of how to substantiate his claim and of what evidence he and VA are responsible for obtaining. Second, in the Veteran's December 2012 VA examination, the examiner stated that the Veteran's back disability and radiculopathy would render him unable to secure and maintain physical employment, but that it would not preclude sedentary employment. That examination also found, however, that repetitive back motion resulted in interference with sitting, standing, or weightbearing. This contradiction was not addressed by the examiner, and the Veteran must be provided with a VA examination that fully addresses the manifestations of his service-connected disabilities and the effect they have on his employment. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with notice of how a TDIU claim is substantiated and of his and VA's respective duties for obtaining evidence. 2. Schedule the Veteran for a VA examination for his TDIU claim by an appropriate medical professional. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. After examining the Veteran, the examiner must identify each impairment or symptom found as a result of the service-connected disabilities (including a low back disability and radiculopathy of the bilateral lower extremities) and state the occupational impact that each impairment or symptom has on the Veteran's ability to secure or follow substantially gainful employment. The examiner should state the functions which would be difficult or impossible to do as a result of the associated service-connected symptom or impairment. Further, the examiner should state the impact that the Veteran's service-connected impairments and symptoms both individually and as a whole have on his ability to accomplish sedentary and manual employment. In offering this opinion, the examiner should also take into consideration the Veteran's level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. 3. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs