Citation Nr: 1315314 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 10-44 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Anderson, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1971 to July 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for an increased rating. In December 2012, the Veteran requested a videoconference hearing before the Board; he failed to appear for such hearing scheduled in March 2013. A May 2012 rating decision granted the Veteran service connection for right leg radiculopathy (as a manifestation of lumbar spine disability), separately rated 10 percent, effective May 5, 2012. As the Veteran has not appealed that determination, the matter of the rating for right leg neurological symptoms is not before the Board. FINDING OF FACT The Veteran's degenerative disc disease of the lumbar spine is not shown to be manifested by limitation of thoracolumbar spine forward flexion to 30 degrees or less or by ankylosis of the spine; incapacitating episodes of disc disease are not shown; separately ratable neurological symptoms (other than right leg radiculopathy) are not shown. CONCLUSION OF LAW A rating in excess of 20 percent for degenerative disc disease of the lumbar spine is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.21, 4.71a, Diagnostic Code 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. In a claim for increase, the VCAA requirement is generic notice, that is, notice of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was advised of VA's duties to notify and assist in the development of his claims. A June 2009 letter explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. An October 2010 statement of the case (SOC) readjudicated the matter. He has received the general-type notice described in Vazquez-Flores, and has had ample opportunity to respond/supplement the record. It is not alleged that notice in this case was less than adequate. See Shinseki v. Sanders, 556 U.S. 396 (2009) (discussing the rule of prejudicial error). Pertinent postservice treatment records are associated with the Veteran's claims file. The RO arranged for the Veteran to be examined (in July 2009 and in May 2012). The Board finds that the July 2009 and May 2012 examinations are adequate for rating purposes as the examiner reviewed the record, noted the history of the disabilities, and conducted a thorough examination of the Veteran, with notation of all clinical findings necessary for a proper determination in this matter. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any pertinent available evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA (VA's electronic data storage system) with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disease. 38 C.F.R. § 4.45. The instant claim for increase was received in April 2009. Consequently, the period for consideration begins in April 2008. The record does not include (and the Veteran has not identified) any records of treatment or evaluations he received for a back disability between April 2008 and April 2009. On July 2009 VA examination, the Veteran complained of a progression of low back pain, stiffness and other symptoms (which the examiner described as lumbar paravertebral muscular fasciculations). He indicated that the pain was severe, constant, and was felt in his low and upper back. Stiffness was severe and constant (all day) and felt in the low back. He also reported constant mild weakness of the low back and that he used a cane at home to help with stabilization, but did not use it all the time. He did not report any flare-ups. On physical examination, range of motion studies revealed flexion to 50 degrees, extension to 20 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees, with pain. On repetitive range of motion, flexion was to 45 degrees and extension to 15 degrees; there was no change for right and left lateral flexion or right and left lateral rotation. The major functional impact of the disability was that that the Veteran was limited in his ability to sit or walk for a period of time (able to walk only 1/4-1/2 block, or 10 minutes, before resting), that he was limited in lifting and bending, and that he has trouble sleeping due to back discomfort. X-rays revealed an endplate sclerosis and spur formation throughout the lumbar spine with vascular calcifications noted. The diagnosis was lumbar spine degenerative disc disease. On May 2012 VA examination, the Veteran complained of daily pain at the lumbrosacral area of the back equal bilaterally, with occasional pain radiation down the right leg to the level of the mid-thigh, increasing with prolonged (greater than 15 minutes) standing and repetitive bending. He did not report flare-ups. On physical examination, range of motion studies revealed flexion to 65 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees, with pain on motion. On DeLuca (repetitive motion) testing, the Veteran did not have any additional limitations. The examiner found the Veteran to have functional loss and/or impairment of the thoracolumbar spine, consisting of less movement than normal and pain on movement. There was tenderness on palpation, but no guarding or muscle spasm. There was normal strength on muscle strength testing, and no atrophy. He was found to have intermittent mild radicular pain of the right lower extremity, with nerve root involvement of the right L4/L5/S1/S2/S3 (sciatic) nerve roots. No other neurologic abnormalities were noted. The examiner found that the Veteran did have IVDS (intervertebral disc syndrome), but no incapacitating episodes over the past 12 months. The Veteran did not report the use of any assistive devices. No other functional impairment was noted. X-rays revealed mild degenerative changes in lower thoracic spine with significant disc space narrowing at L5-S1. The examiner opined that the Veteran's service-connected low back condition would impair his ability for physical employment but not all sedentary employment. The Veteran's service-connected low back disability has been assigned a 20 percent rating. Consequently, the focus is on those criteria that would afford a rating in excess of 20 percent. The disability is rated under Code 5243 (for intervertebral disc syndrome), which provides that the disability is rated either under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula), or based on incapacitating episodes, whichever is more favorable to the veteran. 38 C.F.R. § 4.71a, Codes 5243. Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees; or if there is 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 limited to 30 degrees or less; or where there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Notes following the General Rating Formula criteria provide (in pertinent part): That associated objective neurological abnormalities are to be rated separately under an appropriate diagnostic code. That for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the ranges 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 to 240 degrees. In exceptional cases, an examiner may state that, because of age, body habitus, neurological 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 the regulation. 38 C.F.R. § 4.71a. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the needs of the disability on the Veteran's ordinary activity are for consideration. DeLuca, 8 Vet. App. 202. 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. 38 C.F.R. § 4.71a, Note 1 following the Formula for Rating Based on Incapacitating Episodes. As there is no evidence, or allegation, that the Veteran has ever had an incapacitating episode (bed rest prescribed by a physician), rating based on such episodes would be inappropriate. On close review of the record, the Board found no distinct period of time during the appeal period when symptoms of the Veteran's low back disability were of (or approximated) such nature and gravity as to warrant a rating in excess of 20 percent. Thoracolumbar forward flexion has consistently been greater than 30 degrees (even with consideration of restrictions due to pain and use), and there is no evidence that the spine is ankylosed. Additional factors that could provide a basis for an increase have also been considered; however, it is not shown that the Veteran has any functional loss not encompassed by the current rating. 38 C.F.R. §§ 4.10, 4.40, 4.45; DeLuca, 8 Vet. App. at 205. The May 2012 examination found the major impairment of function with repetitive testing (i.e., on use) was pain. However, this did not cause additional sufficient to warrant a 40 percent rating impairment (flexion limited to 30 degrees, or ankylosis). Consequently, the next higher (40 percent) rating under the General Rating Formula criteria is not warranted. While the Veteran contends that his low back disability has worsened over the years, the record does not support that it has done so to the degree that it would warrant a rating in excess of 20 percent. As a layperson, he is competent to describe the symptoms of his disability and their associated impairment of function. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Whether or not there are limitations or symptoms sufficient to warrant a 40 percent rating (such as flexion limited to 30 degrees), requires clinical examination for the specific findings. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir 2007). The Veteran has not presented any evidence of clinical findings of impairment greater than found on VA examination. As is noted above, radiculopathy of the right leg is separately rated 10 percent (and that rating is not at issue herein). Examinations have not shown any other neurological symptoms that would warrant further separate compensable ratings (and no such symptoms are alleged). The Board has also considered whether referral of this matter for extraschedular consideration is warranted. There is no objective evidence (or specific allegation) of symptoms and/or impairment due to the Veteran's low back disability not encompassed by the schedular ratings assigned. The functional limitations shown are all encompassed by the criteria for the schedular rating . Therefore, those criteria are adequate, and referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). As the criteria for the 20 percent rating currently assigned encompass the greatest degree of severity of the Veteran's low back disability shown at any time during the appeal period, the Board finds that "staged" ratings are not warranted. Finally, an unappealed September 2006 rating decision had denied the Veteran a total disability rating based on individual unemployability. His service-connected disabilities include the low back disability and right lower extremity radiculopathy. While the record reflects that the low back disability has impacted on his ability to engage in strenuous employment, it does not suggest that the low back disability, of itself, has rendered him unemployable; the May 2012 VA examiner opined that it would not impact on certain sedentary forms of employment. Therefore, the matter of entitlement to a TDIU rating is not raised separately in the context of this claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). ORDER The appeal seeking a rating in excess of 20 percent for degenerative disc disease of the lumbar spine is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs