Citation Nr: 1313380 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 00-20 536A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an increased disability rating in excess of 20 percent for lumbosacral strain with degenerative joint disease and degenerative disc disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran had active service from July 1963 to May 1965 with subsequent service in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) from a March 1998 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Newark, New Jersey, which denied an increased rating in excess of 20 percent for lumbosacral strain. In a November 2005 rating decision, the RO granted service connection for degenerative joint disease, as part of the Veteran's service-connected lumbosacral strain disability. In April 2008 the Board remanded the case to the RO for further development. In an April 2009 decision the Board denied entitlement to an increased disability rating for lumbosacral strain with degenerative joint disease and degenerative disc disease. The Veteran appealed the Board's April 2009 decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In a May 2011 decision the CAVC affirmed part of the April 2009 Board decision; and set aside the part of that decision as to the issue of an increased rating for a lower back disability. The Court remanded that claim for further development, for VA to provide the Veteran adequate notice under VCAA of what evidence the Veteran can submit to substantiate his claim for an increased rating for his lower back disability. In November 2011 the Board remanded the case for further development. FINDINGS OF FACT 1. The Veteran's lumbosacral strain with degenerative joint disease and degenerative disc disease has 70 degrees of forward flexion with complaints of painful motion; and is not productive of severe limitation of motion, severe intervertebral disc syndrome or associated incapacitating episodes, severe lumbosacral strain, favorable ankylosis of the thoracolumbar spine, or associated objective neurologic abnormalities such as bowel or bladder impairment. 2. The rating schedule for evaluation of lumbar spine disabilities is adequate for application to the Veteran's claim. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for lumbosacral strain with degenerative joint disease and degenerative disc disease, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5285, 5286, 5289, 5292, 5293, 5295 (2002); Diagnostic Codes 5235-5243 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) On 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. A number of letters dated between April 2001 and December 2011 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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 RO informed the Veteran of the specific criteria to substantiate his claim for an increased rating. The claim was subsequently readjudicated, most recently in a January 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (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 v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, VA records, and private medical records. The Veteran's service treatment records and VA medical treatment records have been obtained. 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 April 2003, April 2005, November 2007, August 2008, and September 2012. The Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. 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, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Applicable Law for Evaluation of Disabilities Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993). When a disability is not specifically listed in the Rating Schedule, it may be rated under a closely related injury in which the functions affected and the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). If the criteria for a compensable rating under a diagnostic code are not met, then a noncompensable rating is awarded. 38 C.F.R. § 4.31 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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). The Veteran is competent to report complaints regarding symptoms capable of lay observation. 38 C.F.R. § 3.159(a)(2) (2012). However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The RO has evaluated the appealed rating assigned for lumbosacral strain with degenerative joint disease and degenerative disc disease under rating criteria for evaluating the musculoskeletal system. 38 C.F.R. § 4.71a (2012). Rating factors for a disability of the musculoskeletal system include functional loss. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion, weakness, or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). During the pendency of this appeal, regulatory changes amended the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2002), including the criteria for rating disabilities of the spine. Effective September 23, 2002, VA revised the criteria for rating intervertebral disc syndrome. 67 Fed. Reg. 54,345 (Aug. 22, 2002). Effective September 26, 2003, VA revised the criteria for rating general diseases and injuries of the spine. 68 Fed. Reg. 51,454 (Aug. 27, 2003). At that time, VA also reiterated the changes to Diagnostic Code 5293 (now classified as Diagnostic Code 5243) for intervertebral disc syndrome. Where the rating criteria are amended during the course of the appeal, the Board considers both the former and the current schedular criteria to determine which is more favorable to the claimant. Should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the liberalizing change. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 (2003), 69 Fed. Reg. 25179 (2004). The diagnostic code criteria of the Rating Schedule in effect prior to September 26, 2003 provide for evaluation of a number of conditions of the spine. However, the evidence below shows no indication of any fracture of vertebra, or complete bony fixation (ankylosis) of the spine or of any part of the spine in particular, or sacroiliac injury, and as the service connected disability does not include the cervical or dorsal part of the spine, the evaluation under diagnostic codes associated with these conditions is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5286, 5287, 5288, 5289, 5290, 5291, 5294 (2002). Under Diagnostic Code 5292, in effect prior to September 26, 2003, a 20 percent rating is assigned for moderate limitation of lumbar motion and a maximum rating of 40 percent is assigned for severe limitation of lumbar motion. 38 C.F.R. § 4.71a (2002). Under Diagnostic Code 5293, in effect from September 23, 2002 and prior to September 26, 2003, a 20 percent rating is assigned for moderate intervertebral disc syndrome with recurring attacks. A 40 percent evaluation contemplates findings of intervertebral disc syndrome, with severe, recurring attacks, with intermittent relief. The next higher 60 percent evaluation requires findings reflective of pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. 38 C.F.R. § 4.71a (2001). Under Diagnostic Code 5295, in effect prior to September 26, 2003, lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in a standing position is assigned a 20 percent evaluation. A maximum rating of 40 percent rating is assigned for lumbosacral strain, with severe symptoms with listing of the whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a (2001). Under the revised criteria that is in effect from September 26, 2003, disabilities of the spine are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) 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 under § 4.25. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2011). VA's revised Rating Schedule provides a single set of criteria for rating conditions of the spine, no matter which spine-related diagnostic code applies. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. 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 is not greater than 120 degrees, or muscle spasm or guarding is 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. 38 C.F.R. § 4.71a. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Id. Unfavorable ankylosis of the entire spine warrants a 100 percent evaluation. Id. The notes listed below apply to the General Rating Formula for Diseases and Injuries of the Spine: Note (1) 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): 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 for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. (See also 38 C.F.R. § 4.71a, Plate V). 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, in the case of thoracolumbar spine disability, an unfavorable ankylosis is a condition in which 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 (0 degrees) always represents favorable ankylosis. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. An incapacitating episode is 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. If intervertebral disc syndrome is presented in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes, or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. VA examined the Veteran's thoracolumbar spine for compensation purposes in April 2003, April 2005, November 2007, August 2008 and September 2012. The most recent clinical evidence, most reflective of the present condition of the Veteran's lumbosacral strain with degenerative joint disease and degenerative disc disease, is contained in findings of the report of the September 2012 VA examination of the Veteran's thoracolumbar spine, which shows that the Veteran reported complaints that his back pain has worsened over the past few years. The Veteran reported that his pain was currently felt daily, and was worse with sitting and bending, and he had no pain with walking and no radiation of pain down the legs. He had no bowel or bladder changes, no weakness, no incapacitating episodes or flare-ups, or interference with his job or daily activity. He reported that he did desk work. He reported he had no sensation changes, and reported no history of radiculopathy; no radicular signs or symptoms. He had no functional impairment and did not use assistive devices. On examination, the Veteran's gait was normal and nonantalgic. He walked 160 feet without assistance. On neurological evaluation, deep tendon reflexes were even and were at 1 of 4. Straight leg raising test was negative. Motor strength was 5/5 distal and proximal, bilaterally for the lower extremities. Muscle tone was normal. Sensation was grossly intact to light touch. Babinski test was down-going bilaterally. The lumbosacral spine showed no muscle spasms, atrophy, or axial tenderness. The Veteran had loss of lumbar lordosis. On range of motion study the Veteran was able to flex 70 degrees; extend 20 degrees; side bend right and left to 25 and 20 degrees, respectively; and rotate right and left to 20 and 15 degrees, respectively. There were subjective complaints of pain with flexion and extension throughout the range of motion; but no objective signs of pain with any range of motion. After repetitions of range of motion, there was no additional limitation of joint function due to pain, fatigue, or lack of endurance. The examiner's assessment was lumbar degenerative disc disease, essentially unchanged since examination in August 2008. In fact, all of the previous VA examinations conducted during the appeal period in reflect findings consistent with the September 2012 VA examination. None provide for a higher disability rating on the basis of limitation of motion under the prior or current versions of diagnostic criteria. Findings from all of these examinations show that at the most limited range of motion, the Veteran's lumbosacral spine was measured at 70 degrees forward flexion, 20 degrees extension, 15 degrees left lateral rotation, 20 degrees of right lateral rotation, and 20 degrees lateral flexion, bilaterally; with consideration for pain and pain on motion. No ankylosis, favorable or unfavorable, was noted at any examination. Repeated motion was observed to produce no further limitation of motion or increased pain. The Veteran walked without a limp and generally was observed to have good tiptoe and heel walk. There were no spasms or tenderness of the lumbar spine. Abnormalities of thoracic sacrospinalis were noted consisting of a spasm on right, pain with motion on left and right, tenderness on left and right but no atrophy or guarding. An abnormal spine curvature of lumbar flattening was noted. Clinical findings throughout show no evidence of spinal stenosis, bony destruction, herniated discs or signs of narrowing disc space. An April 2005 x-ray showed facet arthropathy mid and lower lumbar spine. A February 2007 lumbar spine x-ray showed mild degenerative osteophytes and mild scoliosis. A March 2007 lumbar spine MRI showed mild multilevel degenerative spondylosis most notable at L3/L4 and L5/S1. A. Rating Under Criteria in Effect Prior to September 26, 2003 At worst, the Veteran's lumbar spine range of motion has been to 70 degrees, compared with a normal range of flexion to 90 degrees. See 38 C.F.R. § 4.71a, Plate V. None of the examiners at the VA examinations during the claim period have characterized the range of motion of the Veteran's lumbar spine as productive of severe limitation of motion of the lumbar spine. Most recently, the examiner found that objectively, the Veteran had no objective signs of pain with any range of motion, and after repetitive range of motion produced no additional limitation of joint function due to pain, fatigue, or lack of endurance. None of the clinical records contain evidence showing that the Veteran's lumbosacral strain with degenerative joint disease and degenerative disc disease is productive of severe limitation of motion of the lumbar spine, including with consideration for pain and pain on motion, so as to warrant a higher disability rating in excess of 20 percent. See 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002). There are no finding of intervertebral disc syndrome; and certainly no indication of findings productive of severe intervertebral disc syndrome, with recurring attacks of symptoms compatible with sciatic neuropathy and neurological findings appropriate to a lumbar site of a diseased disc. There is no clinical evidence of lumbosacral strain symptoms productive of a severe condition, with such symptoms as listing of the spine, positive Goldthwaite's signs, or marked limitation of forward bending, or other relevant symptoms so as to warrant a higher rating of the Veteran's lumbosacral strain disability. B. Rating Under Criteria in Effect From September 26, 2003 1. Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes There is no evidence of any incapacitating episodes of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. At the most recent VA examination in September 2012 the Veteran reported he had had no incapacitating episodes or flare-ups, or any history of radiculopathy. There is no evidence of symptoms generally associated with intervertebral disc syndrome on which to premise a rating for incapacitating episodes due to this condition. That is, there is no evidence of pinched nerves, radiation of pain or other radiculopathy, or associated numbness, tingling or other associated symptoms. A rating higher than 20 percent is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 2. Musculoskeletal Low Back Disability Evaluation Based on Range of Motion To warrant a disability higher than the 20 percent rating currently in effect on the basis of range of motion, the evidence must show that the Veteran's low back disability is productive of forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. VA examinations conducted during the pendency of the claim showed that, at worst, the Veteran's low back disability was limited to 70 degrees and there is no evidence of any ankylosis of that part of the spine. None of the VA examination reports or other clinical records during the pendency of the claim contain findings productive of forward flexion of the thoracolumbar spine limited to 30 degrees or less; or of favorable ankylosis of the entire thoracolumbar spine, even with consideration of pain, weakness and other symptoms described in DeLuca. A higher rating is not warranted based on range of motion criteria. Id. 3. Associated Neurologic Abnormality No objective neurological abnormalities associated with the Veteran's lumbosacral strain with degenerative joint disease and degenerative disc disease are demonstrated. VA examinations, as well as other medical evidence of record, show no indication of any such abnormalities. The Veteran has repeatedly reported he has had no bowel or bladder changes, no sexual dysfunction, no radiation of pain down the legs, no sensation changes or history of radiculopathy, and radicular signs or symptoms. Examination test findings show, in general, that strength was measured at 5 of 5, and deep tendon reflexes measured at 1 of 4, equally bilaterally. Reflexes were 2+ bilateral symmetrical and toes down going bilaterally. The straight leg test was negative. Reflexes were 2+/4 for quadriceps and Achilles tendon. Lasegue's sign was negative in the lower extremities. There were no nonorganic physical signs. No radiation of pain down the legs. Spine examination showed all related muscle strength to be 5/5 with no muscle atrophy and normal muscle tone. The examiners diagnosed no separate neurological findings. VA treatment records show complaints of pain but no findings or diagnosis of neurological pathology that would allow a separate compensable evaluation. C. Conclusions An extraschedular rating may be provided where: (1) the schedular criteria are inadequate to describe the severity and symptoms of the claimant's disability; (2) the case presents other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating is in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran has not described any unusual or exceptional features associated with his lumbosacral strain with degenerative joint disease and degenerative disc disease. The rating criteria are adequate to evaluate the disability, and referral for consideration of extraschedular rating is not warranted. The medical evidence does not support a disability rating in excess of 20 percent for the Veteran's lumbosacral strain with degenerative joint disease and degenerative disc disease under either the old or revised diagnostic code criteria. The preponderance of the evidence is against the grant of a disability rating in excess of the existing 20 percent; there is no doubt to be resolved; and an increased rating is not warranted. A claim for a total disability evaluation based on individual unemployability (TDIU) is part of an increased rating claim when such TDIU claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the Veteran is shown to be employed, entitlement to a TDIU is not raised by the record and will not be further discussed. ORDER Entitlement to an increased disability rating in excess of 20 percent for lumbosacral strain with degenerative joint disease and degenerative disc disease is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs