Citation Nr: 1313472	
Decision Date: 04/23/13    Archive Date: 05/03/13

DOCKET NO.  10-04 986	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Albuquerque, New Mexico


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 10 percent for the service-connected lumbar spine disability from March 28, 2009 to June 2, 2011.

2.  Entitlement to an increased rating in excess of 20 percent for the service -connected lumbar spine disability from June 3, 2011 onward.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. Nichols, Associate Counsel



INTRODUCTION

The Veteran served on active duty from June 2001 to March 2009.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the RO that, in pertinent part, granted service connection for a lumbar spine disability and assigned an evaluation of 10 percent, effective on March 28, 2009.

As the claim for an initial increased rating involve a request for a higher rating following the grant of service connection, the Board has characterized these claims in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999).

In a September 2012 rating decision, the RO increased the evaluation of the service connected lumbar spine disability to 20 percent disabling, effective June 3, 2011, the date of the most recent VA examination of record.

A review of the Virtual VA paperless claims processing system reveals documents that are pertinent to the present appeal. 

The issue of an increased rating in excess of 20 percent for the service-connected lumbar spine disability is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDING OF FACT

For the initial period of the appeal, the service-connected lumbar spine disability is shown to have been productive of a functional loss due to pain that more nearly approximates that of restriction of forward flexion of the thoracolumbar spine to less than 60 degrees, but greater than 30 degrees.


CONCLUSION OF LAW

Beginning on March 28, 2009, the criteria for the assignment of an initial higher rating of 20 percent for the service-connected lumbar spine disability are met.  38 U.S.C.A.§§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R.§§ 3.102, 3.159, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a including Diagnostic Codes 5237, 5242, 5243 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1).

A January 2009 VCAA letter explained the evidence necessary to substantiate the claim for an increased rating.  This letter also informed the Veteran of his and VA's respective duties for obtaining evidence.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The January 2009 letter provided and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

With regard to the duty to assist, the claims file contains service treatment records, post-service treatment records, and reports of VA examinations.  See 38 U.S.C.A. § 5103A(a)-(d).

To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not required at this time.


Legal Criteria

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). 

The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 

However, in Fenderson, the Court noted an important distinction between an appeal involving a veteran's disagreement with the initial rating assigned at the time a disability is service connected. 

Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection to consider of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found), are both required.  See Fenderson, 12 Vet. App. at 126; see also Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). 

The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible.  Hart v. Mansfield, 21 Vet. App. 505 (2007). 

In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment.  The Court instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination.  Such inquiry was not to be limited to muscles or nerves.  These determinations were, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. 

Under 38 C.F.R. § 4.59, with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints.  The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. 

It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased.  Flexion elicits such manifestations.  38 C.F.R. § 4.59.


Rating Criteria for Spine Disabilities

A lumbar spine disability can be evaluated under multiple diagnostic codes.  The service-connected lumbar spine disability is currently evaluated as 10 percent disabling under Diagnostic Code 5242, degenerative disc lumbar spine, since that was the original service-connected injury.  38 C.F.R. § 4.71a. 

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:

A 10 percent evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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.  Id. 

A 20 percent is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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.  Id.

A 40 percent evaluation will be assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  Id.

A 50 percent evaluation will be assigned of unfavorable ankylosis of the entire thoracolumbar spine.  Id.

A 100 percent evaluation will be assigned for unfavorable ankylosis of the entire spine.  Id.

Note (1): Evaluate any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.  Id.

Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees.  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.  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 cervical spine is 340 degrees and 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.  Id.

Diagnostic Code 5243 provides that intervertebral disc syndrome (preoperatively or postoperatively) be rated either under the General Rating Formula for Disease 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 under 38 C.F.R. § 4.25. 

Under Diagnostic Code 5243, a 20 percent rating is warranted where there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.

A 40 percent rating is warranted where 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 rating is warranted where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243. 

Diagnostic Code 5243 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician.  Id. 

In addition, under Diagnostic Code 8520, a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve.  38 C.F.R. § 4.124a, Diagnostic Code 8520.

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 

Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1). 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R.§ 3.159(a)(2). 

In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).



Analysis

Based on a careful review of the medical evidence for the initial period of the appeal, the Board finds that service-connected lumbar spine disability picture is shown to have been manifested by a functional loss due to pain that more nearly resembled that of a restriction of flexion of the thoracolumbar spine to less than 60 degrees.  However, a limitation of motion or a functional loss due to pain to less than 30 degrees is not shown in this case.  

The Board in arriving at this decision finds, considering the Veteran's consistent reports of pain on motion, as per DeLuca, considering 38 C.F.R. § 4.59, and his February 2010 statement that the examining physician at the February 2009 VA examination did not adequately perform the range of motion studies (did not utilize the range of motion measuring device).  

However, the criteria for an evaluation in excess of 20 percent for the service-connected lumbar spine disability are not demonstrated in this case.  In order to assign a higher rating, the Veteran would have to be found to have limitation of flexion of the thoracolumbar spine of 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  

On review of the entire record, the Board finds that such a level of incapacity is not demonstrated by the medical evidence for this period of the appeal - the period from March 28, 2009 to June 3, 2011.  

As to lay evidence, the Veteran is uniquely suited to describe the severity, frequency, and duration of his service-connected lumbar spine disability.  See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995).  

The Board finds that the lay evidence of record from the Veteran throughout the appeal is both competent and credible.  That said, this evidence does provide a basis for assigning a rating of 20 percent under the applicable rating criteria for his lumbar spine disability.

Accordingly, on this record, an increased rating of 20 percent, but not higher for the service-connected lumbar spine disability for the initial period of the appeal is warranted.  38 C.F.R. § 4.3.

Based upon the guidance of the Court in Hart v. Mansfield, the Board has also considered whether a staged rating is appropriate.  For the lumbar spine disability, the 20 percent rating is effective beginning on March 28, 2009.  

Significantly, for the period of appeal beginning on June 3, 2011, the Board is remanding  the matter hereinbelow.


Extraschedular Consideration

Finally, there is no evidence of exceptional or unusual circumstances to warrant referring the case for extraschedular consideration.  38 C.F.R. § 3.321(b)(1).  Since the rating criteria for the spine reasonably describe the claimant's disability level and symptomatology, the Veteran's disability picture is contemplated by the Rating Schedule, such that the assigned schedular evaluation for his lumbar spine is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. 

The medical and lay evidence of record does not present anything unique or unusual about the service-connected lumbar spine disability that would render the schedular criteria inadequate.

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes and the General Rating Formula for Diseases and Injuries of the Spine specifically address all relevant symptomatology identified by the Veteran. 

In other words, since the Veteran's disability picture is contemplated by the Rating Schedule, there is no exceptional disability picture that would warrant consideration of factors such as marked interference with employment or frequent periods of hospitalization.  Thun, 22 Vet. App. at 116; see also 38 C.F.R. § 3.321(b)(1). 

The Board has also considered all factors of functional loss listed under sections 4.40, 4.45, 4.59 and the DeLuca case.  All of the Veteran's lumbar spine symptoms are contemplated in the ratings assigned.  


ORDER

An initial disability rating of 20 percent, but no higher for the service-connected lumbar spine disability effective on March 28, 2009 is granted, subject to the regulations controlling the disbursement of VA monetary benefits.


REMAND

When a Veteran claims that his condition is worse than when originally rated, and when the available evidence is too old for an evaluation of the claimant's current condition, VA's duty to assist includes providing him with a new examination, as evidenced by his statements.  Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).  

In this case, the Veteran asserts that his service-connected lumbar spine disability warrants a higher evaluation (in excess of 20 percent disabling from June 3, 2011 onward).  In January 2013, he asserted that he was having weekly flare-ups and that flexion caused him great pain.  

The Veteran should accordingly be scheduled for an examination to determine the current severity of his service-connected lumbar spine disability.

Furthermore, the Veteran also argued that the June 2011 VA examination is inadequate as the case file was not reviewed by the examining physician.  Once VA undertakes the effort to provide an examination, it must provide an adequate one.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

Prior to arranging for the Veteran to undergo further VA examination, the RO should obtain and associate with the claims folder all outstanding VA medical records and pertinent private records. 

The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).

Accordingly, this remaining matter is REMANDED for the following action:

1.  The RO should take appropriate action to contact the Veteran in order to have him provide information referable to any treatment rendered to him for his service-connected back disability since 2010.  Copies on all outstanding medical records should be obtained and associated with claims file. 

This should include obtaining copies of any outstanding VA treatment records for the period in question.

All attempts to secure this evidence must be documented in the claims file.  

The Veteran also should be notified that he may submit medical evidence or treatment records in support of his increased rating claim.  

2.  The RO then should have the Veteran scheduled for a VA examination in order to determine the current severity of the service-connected lumbar spine disability.  The claims file should be made available to the examiner for review in connection with the examination.  All clinical and special test findings should be clearly reported, and pertinent orthopedic and neurological findings should be reported.  

The examination of the spine should include appropriate testing including range of motion studies.  With regard to range of motion testing, the examiner should report at what point (in degrees) pain is elicited as well as whether there is any other functional loss due to weakened movement, excess fatigability or incoordination.  

The examiner should specifically state if ankylosis and muscle spasm are present.  

The examiner also should report any specific information as to the frequency and duration of incapacitating episodes in the past 12 months, and a description of all neurologic manifestations, to include, but not limited to, radiating pain into an extremity, and bowel or bladder impairment. 

Any neurological disability resulting from the lumbar spine disability should be described in detail.  

Each opinion should be supported by an appropriate rationale.

3.  After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response.

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  

The Veteran has the right to submit additional evidence and argument on the matter or matters 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).


______________________________________________
STEPHEN L. WILKINS 
Veterans Law Judge, 
Board of Veterans' Appeals


Department of Veterans Affairs