Citation Nr: 1313191 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 09-37 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE What evaluation is warranted for midback strain with mild dextroconvex scoliosis? REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from September 2001 to April 2007. This case originally came before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which, in pertinent part, granted entitlement to service connection for a midback strain with mild dextroconvex scoliosis, and assigned an initial noncompensable evaluation, effective from April 26, 2007. This case was previously before the Board in June 2011, at which time the Board denied the Veteran's claim for an initial compensable evaluation based upon findings from a May 2008 VA examination report. The Veteran appealed that determination to the United States Court of Appeals for Veterans Claims (Court), which, in a January 2012 Order, vacated the Board's June 2011 decision to the extent that decision denied entitlement to a compensable evaluation for midback strain with mild dextroconvex scoliosis. In so doing, the Court remanded the case to the Board for action consistent with a December 2011 Joint Motion. In June 2012, the Veteran's case was remanded for additional development. The case is now, once more, before the Board for appellate review. FINDING OF FACT The Veteran's midback strain with mild dextroconvex scoliosis is not manifested by forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or by a combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or by muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or by a vertebral body fracture with a loss of 50 percent or more of the height. CONCLUSION OF LAW The criteria for an initial compensable evaluation for midback strain with mild dextroconvex scoliosis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.31, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As service connection, an initial rating, and an effective date have been assigned for the Veteran's service-connected midback sprain with mild dextroconvex scoliosis, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Moreover, there is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in March 2008, and in June and August 2012, of the information and evidence needed to substantiate and complete his claim, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Increased Rating In reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, as well as service treatment records, and both VA (including Virtual VA) treatment records and examination reports. 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 his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that 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 in this case seeks an increased evaluation for service-connected midback strain with mild dextroconvex scoliosis. In pertinent part, it is contended that manifestations of that disability are more severe than presently evaluated, and productive of a greater degree of impairment than is reflected by the noncompensable evaluation now assigned. Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the Rating Schedule. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. While the Board must consider the Board's medical history as required by various provisions under 38 C.F.R. Part 4, including 38 C.F.R. § 4.2 [see Schafrath v. Derwinski, 1 Vet. App. 589 (1991)], the degree of impairment resulting from a service-connected disability is a factual determination, with the Board's primary focus in such cases being upon the current severity of the service-connected disability. See Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the Francisco rule does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an award of service connection for the disability in question. Rather, at the time of the initial rating, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. Ratings are to be based as far as practicable upon the average impairment of earning capacity, with the additional proviso that the Secretary shall, from time to time, readjust the schedular ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve, on the basis of the criteria set forth in 38 C.F.R. § 3.321, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture, with such related factors as a marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In the present case, in a rating decision of July 2008, the RO granted service connection (and a noncompensable evaluation) for midback strain with mild dextroconvex scoliosis. The Veteran voiced his disagreement with the assigned noncompensable evaluation, and the current appeal ensued. Service treatment records disclose that, at the time of a service separation examination, the Veteran indicated that he had experienced recurrent pulled muscles in his back, though he had never sought medical attention, given that the "pain only last(ed) a few days and (was) nothing serious." Significantly, the Veteran indicated that he did not self-medicate. At the time of examination, the Veteran received a diagnosis of back pain secondary to somatic dextroconvex scoliosis at the 4th through the 10th thoracic vertebrae. At the time of a May 2008 VA general medical examination, the Veteran's claims file and electronic medical records were available, and were reviewed. Noted at the time was that the examiner took the Veteran's extensive reported history, to include verbatim inclusion of a written history provided by the Veteran. Reduced to its essence, the Veteran reported that the rigors of constant heavy lifting related to his duties of ship repair, including lifting above eye level, led to the development of back pain and, in the Veteran's words, pulled muscles. Reportedly, the Veteran never sought treatment, and there was no official record until the time of his physical examination for separation. The Veteran was issued inserts for his boots to help his symptoms, but reportedly they did not provide much in the way of relief. The Veteran denied being under treatment at the time of the examination, though he did tell the examiner that he experienced intermittent dull pain in the middle of his back. On a scale of 1 to 10, the Veteran assessed his daily pain as 0/10, and he denied any radiation of that pain. During flare-ups, the Veteran assessed his pain as 4/10. According to the Veteran, his symptoms were aggravated by bending and lifting, though time and rest provided some relief. Further noted was that the Veteran's flare-ups sometimes occurred weekly and other times, monthly, and could last for 2 to 3 days. Reportedly, pain was the main residue of a flare-up or on repetitive use. When questioned, the Veteran denied any tingling, weakness, numbness, or incapacitating episodes, and further denied any functional limitation. The Veteran indicated that he could walk for an unlimited distance and stand for more than three hours, assuming no flare-up was active. The Veteran denied taking any daily medication, and indicated that he was a full-time student studying to be a physical therapist. On physical examination, the Veteran displayed a normal gait and stance. The left iliac crest was one-half inch lower than the right. The Veteran was able to rise on his toes and heels, rise from a squat, and tandem walk, all without difficulty. Range of motion measured with a goniometer was full, fluid, and pain-free. Tests of straight leg raising were negative bilaterally, and strength in the lower extremities was 5/5, with deep tendon reflexes of 2+ at the patellar and Achilles tendons. Sensation to light touch was intact in the lower extremities bilaterally, and pulses in both lower extremities were intact. At the time of examination, there was no evidence of any cyanosis, clubbing, or pedal edema. Radiographic studies showed evidence of a mild dextroconvex lower thoracolumbar scoliosis, though they were otherwise unremarkable. The pertinent diagnosis noted was midback strain with mild dextroconvex scoliosis. Significantly, according to the examiner, the Veteran's back disorder had no impact on his employability as long as there was no requirement for "heavy lifting." As of the time of a more recent VA Compensation and Pension examination in July 2012, it was once again noted that the Veteran's claims file and electronic medical records were available, and had been reviewed. When questioned, the Veteran indicated that he suffered from intermittent symptoms of pulled muscles in the upper thoracic area, though without any neck pain. The Veteran indicated that, on those occasions when he would pull a muscle between his shoulder blades, his pain varied in severity between 4-8/10. According to the Veteran, the duration of his pain was from a couple of days to 10 days. When further questioned, the Veteran indicated that he worked for a rehabilitation service, and that he drove, cooked, and assisted patients in the activities of daily living. Reportedly, the Veteran had been employed in this position for just over one year, and had not missed any work due to his upper back symptoms. According to the Veteran, he could usually work through his pain "with a couple of Motrin." Significantly, when questioned, the Veteran denied any incapacitating episodes of upper back pain. When questioned regarding flare-ups, the Veteran indicated that he had experienced 7 to 8 episodes of flare-ups over the course of the past 12 months. However, he had not sought medical attention for his upper back condition since he left the Navy. According to the Veteran, his flare-ups had never prevented him from working. On physical examination, range of motion measurements showed forward flexion to 90 degrees or greater, with no objective evidence of painful motion. Extension was to 30 degrees or greater, once again, with no objective evidence of painful motion. Right and left lateral flexion were to 30 degrees or greater, with no objective evidence of painful motion. In like manner, right and left lateral rotation were to 30 degrees or greater, once again, with no objective evidence of painful motion. At the time of examination, the Veteran was able to perform repetitive use testing with three repetitions. Following those repetitions, the Veteran's forward flexion ended at 90 degrees or greater, while extension ended at 30 degrees or greater. Post test right and left lateral flexion ended at 30 degrees or greater, while post test right and left lateral rotation similarly ended at 30 degrees or greater. Noted at the time of examination was that the Veteran did not have additional limitation in range of motion of the thoracolumbar spine following repetitive use testing. Nor did the Veteran exhibit any functional loss and/or functional impairment of the thoracolumbar spine. At the time of examination, there was no evidence of any localized tenderness or pain to palpation of the joints or soft tissue of the thoracolumbar spine. Nor did the Veteran exhibit any guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing was entirely within normal limits, and there was no evidence of any muscle atrophy. Tests of deep tendon reflexes were similarly entirely within normal limits, as were tests of sensation and straight leg raising. Noted at the time of examination was that the Veteran had no radicular pain or any signs or symptoms resulting from radiculopathy. Nor was there evidence of intervertebral disc syndrome of the thoracolumbar spine. Previous radiographic studies were read as showing mild dextroconvex scoliosis of the lower thoracic spine, with an apex of curvature at the level of the 10th and 11th thoracic vertebrae, and otherwise normal alignment of the thoracic spine. The vertebral body heights were well maintained, and there was no evidence of any compression fracture or spondylolisthesis. There was no evidence of arthritis. The examiner opined that the Veteran's thoracolumbar spine condition had no impact on his ability to work. Further noted was that the Veteran's midthoracic pain did not significantly limit his functional ability during flare-ups. The Veteran himself indicated that his midthoracic pain did not significantly limit his functional ability during flare-ups. Moreover, the Veteran exhibited a full range of motion of his neck, and upper and lower back, with no loss following three repetitions. According to the Veteran, he worked out in the gym 4 to 5 times per week, and performed sets of assisted pull-ups, in addition to bench pressing 150 pounds without back pain. Significantly, the Veteran indicated that he had been strengthening his upper back muscles through exercise, and that his back pain now only lasted "seconds to a couple of minutes," on those occasions when it occurred. As noted above, the Veteran has been in receipt of a noncompensable evaluation for service-connected midback strain with mild dextroconvex scoliosis effective from April 26, 2007, the date following his discharge from service. Pursuant to applicable law and regulation, the general rating formula for diseases and injuries of the spine is for application 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. In this regard, a 10 percent evaluation is in order where there is evidence of 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 an abnormal gait or abnormal spinal contour; or vertebral body fracture with a loss of 50 percent or more of the height. A 10 percent evaluation is, similarly, in order where there is evidence of incapacitating episodes having a total duration of at least one week but less than two weeks during the previous 12 months, with an incapacitating episode defined as a period of acute signs and symptoms due to intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5243 (2012). Significantly, in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation is to be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2012). VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The United States Court of Appeals for Veterans Claims (Court) has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Significantly, however, the general rating formula for back disorders is controlling, because VA must follow its own regulations. Browder v. Derwinski, 1 Vet. App. 204, 205 (1991). Moreover, while the provisions of 38 C.F.R. §§ 4.40 and 4.45 address pain in general, the specific provisions of 38 C.F.R. § 4.71a address how pain is to be rated when evaluating the nature and extent of back disorders. As the canon of interpretation provides that the more specific trumps the general [see Zimick v. West, 11 Vet. App. 45, 51 (1998); see also Kowalski v. Nicholson, 19 Vet. App. 171 (2005)], it follows that the specific provisions of 38 C.F.R. § 4.71a regarding back pain control claims of entitlement to an increased rating for a back disorder. In that regard, 38 C.F.R. § 4.71a specifically states that back disorders are to be rated under the prescribed criteria with or without symptoms such as pain (whether or not the pain radiates), with or without stiffness, and with or without aching in the area of the spine affected by residuals of injury or disease. Simply put, the presence of pain is part of the formula. 68 Fed. Reg. 51,454-5 (August 27, 2003) (pain is often the primary factor limiting motion, for example, and is almost always present when there is muscle spasm). Accordingly, the evaluation criteria provided are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine. The Board acknowledges that the Court, in Cullen v. Shinseki, 24 Vet. App. 74, 85 (2010), held that the Board must discuss any additional limitations a claimant experiences due to pain, weakness, or fatigue. This obligation to discuss, however, is not an obligation to ignore the clear language of the controlling general rating formula. In the case at hand, the entire weight of the evidence is to the effect that no more than a noncompensable evaluation is warranted for the Veteran's service-connected midback strain with mild dextroconvex scoliosis. As noted above, at the time of a VA general medical examination in May 2008, the examiner specifically noted that, not only was motion of the thoracolumbar spine full, it was "fluid and pain-free." Significantly, there was no evidence of muscle spasm or guarding, or, for that matter, vertebral fracture. As of the time of a more recent VA examination in July 2012, the Veteran denied any incapacitating episodes of upper back pain, and similarly denied that his "flare-ups" had ever prevented him from working. Range of motion measurements were entirely within normal limits, and there was no evidence of any muscle spasm or guarding. According to the examiner, and by the Veteran's own admission, his midthoracic pain did not significantly limit his functional ability during flare-ups. Moreover, there was no limitation in range of motion following three repetitions of movement. According to the Veteran, he could perform sets of assisted pull-ups in addition to bench pressing 150 pounds without suffering any back pain. Moreover, on those occasions when the Veteran's back pain did occur, it only lasted "seconds to a couple of minutes." Significantly, at no time during the course of the Veteran's current appeal has there been evidence of either weakness or fatigue, or any functional loss due to pain, on use or due to flare-ups. Based on the aforementioned, a compensable evaluation is not warranted for the Veteran's service-connected midback strain with mild dextroconvex scoliosis. In reaching this determination, the Board has considered the potential application of various other provisions, including 38 C.F.R. § 3.321(b)(1) governing those exceptional cases where the schedular evaluation is found to be inadequate. See Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). However, in the case at hand, the Rating Schedule adequately contemplates the nature and extent of the Veteran's pathology. Accordingly, referral for consideration of an extraschedular evaluation is not warranted. Id. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to a compensable evaluation for midback strain with mild dextroconvex scoliosis is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs