Citation Nr: 1312470 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 10-14 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a disability rating in excess of 10 percent for degenerative joint disease (DJD) of the lumbar spine. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active service from October 1981 to November 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The case was remanded by the Board in November 2012 to obtain VA treatment records and afford the Veteran the opportunity to provide any non-VA treatment providers. The RO requested the additional information in a December 2012 letter to the Veteran, to which the RO did not receive a response. Additional VA treatment records were obtained and associated with the claims file. Therefore, a review of the record indicates that the Board's directives were substantially complied with regarding the issue on appeal. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT The Veteran's lumbar spine has greater than 60 degrees of flexion, greater than 120 degrees of combined range of motion, without muscle spasm or guarding that results in an abnormal gait or spinal contour, and without incapacitating episodes. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for DJD of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.118, Diagnostic Codes 7801, 7802, 7804, 7805 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist 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)) 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 a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 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, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The record shows that through a VCAA letter dated September 2009, the Veteran was informed of the information and evidence necessary to substantiate the claim. The Veteran was also advised of the types of evidence VA would assist her in obtaining as well as her own responsibilities with regard to identifying relevant evidence. The case was readjudicated in February 2013. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA treatment records, VA examination reports, and lay evidence. No additional pertinent evidence has been identified by the Veteran. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, she 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 notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection for a recurrent back pain was awarded in an April 1997 rating decision. The Veteran filed the instant claim for an increased rating in August 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; 38 C.F.R. § 4.1. 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; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; 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; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. 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, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). 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. It should be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. DJD of the lumbar spine is rated under Diagnostic Code 5237. Diagnostic Code 5237 refers to the general rating formula for diseases and injuries of the spine. Under the general rating formula for diseases and injuries of the spine, ratings related to the thoracolumbar spine are assigned as follows: 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; or, vertebral body fracture with loss of 50 percent or more of the height; 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 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) 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 combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: 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; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated 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 evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrants a 20 percent evaluation. A 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. The Board has reviewed all the evidence in the record. 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 her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran was afforded a VA examination in October 2009. The Veteran reported daily moderate to severe pain in the lumbar area. The examiner noted no incapacitating episodes in the past twelve months. The Veteran takes tramadol and robaxin twice a day with mild relief and no side effects. Inspection of the lumbar spine revealed normal posture and gait, normal curvature of the spine, and normal symmetry in appearance. Range of motion testing showed forward flexion to 90 degrees with mild discomfort, extension to 30 degrees without discomfort, lateral flexion to 30 degrees bilaterally, and lateral rotation to 30 degrees bilaterally. The examiner noted objective evidence of painful motion without acute spasm or weakness. He noted tenderness of the paravertebral muscles in the lumbar area without signs of atrophy or guarding. The examiner found no postural abnormalities, fixed deformity (ankylosis), or abnormality of musculature of the back. The Veteran's sensory and motor examinations were intact. The examiner noted no additional limitations of motion with three repetitions of movement during the physical exam as related to pain, fatigue, incoordination, weakness, or lack of endurance. The examiner diagnosed bilateral facet hypertrophy of the lumbar spine. An October 2010 VA treatment record showed slight discomfort in the lower lumbar spine to direct palpation. The examiner noted no radicular pain, negative straight leg testing, and a normal sensory examination. A subsequent April 2011 VA treatment record showed some tenderness around the lower lumbar spine and down around the sacrum. The Veteran was afforded another VA examination in March 2012. The examiner noted DJD of the lumbar spine. The Veteran reported receiving shots of toradol for the pain. Range of motion testing showed forward flexion to 90 degrees, extension to 30 degrees, lateral flexion to 30 degrees bilaterally, and lateral rotation to 30 degrees bilaterally. The examiner noted no objective evidence of painful motion with any testing. Upon three repetitions, the results remained the same. Subjectively, there was functional loss or functional impairment of the back due to pain on movement, and the Veteran complained of localized tenderness or pain to palpation for joints or soft tissue of the thoracolumbar spine, but did not present with guarding or muscle spasm. The Veteran's sensory exam was normal, although the reflex exam showed hypoactive ankle reflexes and the muscle strength testing showed 4/5 in the right hip flexion, right knee extension, right ankle plantar flexion, and right ankle dorsiflexion. The Veteran's neurological testing was normal. The Veteran noted some functional impact on the Veteran, to include difficulty lifting at times due to back pain. The Veteran provided testimony in January 2011 before a Decision Review Officer. The Veteran noted that she wore a back brace and that she has missed a few days work due to back pain. She reported back pain, spasms, and popping. She specifically noted spasms after three to four hours of work. In this case, the most probative evidence indicates that the Veteran's low back disability manifests with painful motion that does not result in a limitation of flexion less than 60 degrees or a combined range of motion less than 120 degrees. The evidence does show muscle spasm, but the muscle spasm is not severe enough to result in an abnormal gait or abnormal spinal contour. Additionally, the Veteran has not experienced any incapacitating episodes. The Board concludes that the medical findings on examination and in treatment records are of greater probative value than the Veteran's allegations regarding the manifestations and severity of her low back disability. The Veteran has testified as to painful motion and muscle spasms, which have been considered in the application of the rating criteria. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a disability rating in excess of 10 percent for DJD of the lumbar spine. The Board notes that the criteria set forth in DeLuca have been addressed. Although the Veteran experiences pain with motion, this pain has not caused limitation of flexion less than 60 degrees, combined range of motion of the thoracolumbar spine less than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal, or incapacitating episodes. 38 C.F.R. § 4.71a. The VA examiners addressed the criteria set forth in DeLuca v. Brown, 8 Vet. App. 202 (1995), and specifically noted no change in range of motion findings due to pain or repetition. The Veteran did report pain; however, the Board finds that the Veteran's complaints of pain do not impair the Veteran's functioning to the degree required to more closely approximate a higher rating for the low back. Mitchell v. Shinseki, 25 Vet.App. 32 (2011). The Board has also considered whether the Veteran's low back 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 an extra-schedular rating 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 for the claimed condition and provide for additional or more severe symptoms than currently shown by the evidence. Thus, the disability picture for her service-connected DJD of the lumbar spine 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 above conclusions, 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) (West 2002); Ortiz, supra; Gilbert, supra. ORDER Entitlement to a disability rating in excess of 10 percent for DJD of the lumbar spine is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs