Citation Nr: 1315355	
Decision Date: 05/09/13    Archive Date: 05/15/13

DOCKET NO.  08-30 145	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an evaluation in excess of 40 percent degenerative joint disease of the thoracic and lumbosacral spine.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

H. Hoeft, Counsel



INTRODUCTION

The Veteran served on active duty from August 1976 to January 1996. 

This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which continued the currently assigned 40 percent evaluation for degenerative joint disease of the thoracic and lumbosacral spine.  In January 2008, the Veteran filed a notice of disagreement with this decision.  The RO issued a statement of the case dated in September 2008, and the Veteran submitted his substantive appeal in October 2008. 

The appeal was previously before the Board in April 2010, at which time it was remanded for further development.  

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence.


FINDINGS OF FACT

The Veteran's service-connected degenerative joint disease of the thoracic and lumbosacral spine is not shown to be manifested by unfavorable ankylosis of the thoracolumbar spine or unfavorable ankylosis of the entire spine, or intervertebral disc syndrome manifested by incapacitating episodes of at least 6 weeks during the past 12 months.



CONCLUSION OF LAW

The criteria for a rating in excess of 40 percent for degenerative joint disease of the thoracic and lumbosacral spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine; Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). 

The United States Court of Appeals for Veteran Claims (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits.  This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. 

July 2007 and September 2007 VCAA letters were issued to the Veteran, both of which predated the AOJ decision which denied entitlement to an increased rating. Id.  The VCAA letters notified the Veteran of what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the claimant, and what information and evidence will be obtained by VA.  The contents of this notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  These letters also provided the Veteran with notice of the types of evidence necessary to establish an effective date.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

The Board acknowledges a decision from the Court that provided additional guidance on the content of the notice that is required under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) in claims involving increase compensation benefits. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).  The Board points out that the U.S. Court of Appeals for the Federal Circuit reversed the Court's holding in Vazquez, to the extent the Court imposed a requirement that VA notify a Veteran of alternative diagnostic codes or potential "daily life" evidence.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  In any event, notice per Vazquez was issued to the Veteran in July 2008, thus the Veteran has received proper notice per Vazquez. 

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice.  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). 

The Board also finds that VA has complied with all assistance provisions of VCAA, to include substantial compliance with the April 2010 Board Remand.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  The evidence of record contains the Veteran's VA medical records and private medical reports.  In April 2010, VA sent a letter to the Veteran requesting that he complete an appropriate release (VA Form 21-4142) pertaining to medical treatment received from any private practitioner, but to specifically include Dr. Villarreal.  The Veteran submitted the appropriate release form for treatment records from Dr. Villarreal; such records were added to the claims file in May 2010.  There is otherwise no indication of relevant, outstanding records which would support the Veteran's claim for a higher rating.  38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3).  Additionally, the evidence of record contains VA examination reports dated in August 2007, February 2009, August 2010, and August 2012.  Collectively, the examination reports obtained are thorough and contain sufficient information to decide the issue on appeal.  See Massey v. Brown, 7 Vet. App. 204 (1994). 

Lastly, in November 2012, the Veteran submitted a statement along with his "SSOC Notice Response," indicating that he continued to receive private treatment for his back disability, but that he had no additional information or documentation that he wished to add to the claims file.  He requested that his appeal be submitted to the Board as soon as possible for further appellate consideration.  See SSOC Notice Response, November 2012.  As such, the Board has obtained all identified private treatment records in connection with his appeal.  In addition, VA treatment records dated through August 2012 were added to the Veteran's Virtual VA claims file in October 2012.  These records were reviewed by the AOJ in the October 2012 SSOC.  Accordingly, the AOJ initially reviewed the evidence/information and considered such.  The Board finds that no additional action in this regard is warranted.  See generally, 38 C.F.R. §§ 19.37, 21.1304 (2012).

For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the increased rating issue on appeal.

I. Applicable Laws and Regulations 

The Veteran seeks a disability rating in excess of 40 percent for his degenerative joint disease of the thoracic and lumbosacral spine.  

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4.  Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder.  38 C.F.R. §§ 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3 (2012).  If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).

Where, as here, 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 importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Separate ratings may be assigned for separate periods of time based on the facts found, however.  This practice is known as 'staged ratings.'  Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's service-connected degenerative joint disease of the thoracic and lumbosacral spine has been rated as 40 percent disabling under Diagnostic Code (DC) 5243, pertaining to intervertebral disc syndrome (IVDS).  Intervertebral disc syndrome will be evaluated 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 (both outlined below), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012).

The relevant criteria contained in the General Rating Formula for Diseases and Injuries of the Spine provide that a 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine.  38 C.F.R. § 4.71a.

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 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 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, 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.

Ankylosis is immobility and consolidation of a joint due to disease, injury, surgical procedure.  Lewis v. Derwinski, 3 Vet. App. 259 (1992) (memorandum decision); Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995).  Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint.  Dinsay v. Brown, 9 Vet. App. 79, 81 (1996).

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 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.  

For purposes of evaluation under Diagnostic Code 5243 (Intervertebral Disc Syndrome), 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, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1) (2012).

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.  38 C.F.R. § 4.71a, The Spine, Formula for rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2).

Lastly, when evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint.  38 C.F.R. § 4.59.  Application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis and when raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability.  Burton v. Shinseki, 25 Vet. App. 1 (2011). 

Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).  Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45).  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.  

II. Factual Background 

The Veteran seeks a disability rating in excess of the 40 percent disability rating currently assigned for his thoracic and lumbosacral spine disability.  He specifically endorses incapacitating episodes of back pain, limited motion of the thoracolumbar spine, flare-ups, continuous opioid use for pain management, and an overall decreased quality of life due to back pain. 

VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred.  38 C.F.R. §§ 3.157, 3.400(o)(2) (2012).  In this case, as the Veteran filed his claim for an increased rating in May 2007, VA must review the evidence of record from May 2006.  Therefore, the Board will discuss all of the applicable criteria from that date. 

The relevant evidence of record consists of VA outpatient treatment records, dated from May 2006 to August 2012; VA examinations dated in August 2007, February 2009, August 2010, and August 2012; private treatment reports from Dr. Villarreal, M.D., dated from 2006 to 2010; private treatment records from Dr. Smith, dated in 2007; and statements from the Veteran in support of his claim. 

Upon receipt of the Veteran's increased evaluation claim, he was afforded a VA medical examination in August 2007.  He reported onset of thoracic and lumbar spine pain in 1991 (in-service).  His pain has been recurrent and worsening since that time.  The Veteran reported that he retired in 1997 and that back pain had not interfered with his job when he was employed; however, it occasionally affected his daily activities.  Currently, he endorsed daily muscle spasms and stiffness of the thoracic and lumbar spine, along with radiating pain to the lower extremities with tingling and numbness.  He stated that the back pain was "severe" at times (i.e., going up to a 10 on the pain scale), and that he was on Percocet and Kadian for pain relief.  He had also been prescribed a TENS unit and a cane for ambulation.  He denied urinary/bowel incontinence.  

On objective examination, his gait was antalgic.  Range of motion of the thoracolumbar spine was as follows: flexion was limited to 65 degrees (pain beginning at 70 degrees); extension limited to 8 degrees (pain beginning at 10 degrees); right lateral flexion was limited to 20 degrees; left lateral flexion was limited to 15 degrees; right lateral rotation was limited to 10 degrees; and left lateral rotation was limited to 8 degrees.  There was no fixed deformity of the spine.  The examiner estimated that, on acute flare-ups of pain, there was 50 percent less range of motion of the thoracolumbar spine.  There were objective signs of fatigability.  All planes of motion were decreased with repetition, but flexion, extension, and right and left lateral rotation and flexion were still possible.  Functional impairment was noted as "moderately severe."  X-rays and MRI of the thoracic and thoracolumbar spine confirmed degenerative changes, spondylosis (lumbar), and disc disease.  The pertinent diagnoses were degenerative disc disease of the thoracic and lumbar spine, with moderately severe limitation of motion with associated sciatic radiculopathy of the bilateral lower extremities (note: service connection is currently in effect for bilateral lower extremity radiculopathy).  

A contemporaneous statement from the Veteran's private physician, Dr. Villarreal, likewise indicated that the Veteran suffered from lumbar spondylosis with degenerative disc disease and that he was using opioid therapy, which had been "managing his pain very well and for which he has had increased mobility." See August 2007 Statement from Dr. Villarreal. 

Other private treatment records from Dr. Smith of the Spine Center (also dated in 2007) show continued treatment for progressively worsening low back pain.  These records further indicated that the Veteran was doing "very well" on the medications prescribed to him by Dr. Villarreal.  Objectively, there was decreased range of motion of the lumbar spine, with normal neurological examination.  The diagnostic assessment was lumbar herniation with radiculopathy, spinal stenosis, and spondylolisthesis. 

VA outpatient treatment records dated from 2007 to 2008 show continued treatment and complaints of low back pain; he consistently denied having any bladder/bowel incontinence, but some constipation and continued lower extremity/hip pain/radiation.  An April 2008 VA treatment note reflects a one-time surgical consultation with a private physician, Dr. Muthy, at which time surgical intervention was not recommended.  It was noted that a recent MRI showed no signs of instability, despite multiple level degenerative disc disease.  

An August 2008 letter from Dr. Villarreal reflected diagnoses of chronic pain syndrome, lumbar disc displacement with myelopathy, chronic left hip pain, and lumbar spondylosis.  These conditions were noted as chronic and degenerative in nature, and it was not anticipated that this conditions would improve.  He noted that these degenerative changes would eventually limit his ability to perform his ADLs and impact his level of dependence.  

The Veteran was afforded another VA examination in February 2009.  Current treatment for low back pain included a TENS unit, location injections, and opioids.  He denied a history of bladder/bowel incontinence; he endorsed erectile dysfunction (for which service connection is currently in effect), and lower extremity numbness (also service-connected).  He also reported fatigue, decreased motion, weakness, stiffness, and pain the thoracic and lumbar spine area.  He described the pain as sharp, moderate, constant, radiating, and daily.  He endorsed severe, weekly flare-ups, lasting hours which were only relieved by "bed rest" (again, as reported by the Veteran).  Functional impairment during flare-ups was described as loss of spinal motion.  The Veteran reported "incapacitating episodes of spine disease," occurring two times per week, and which Dr. Villarreal "recommended rest and additional pain medication."  The Veteran used a cane and was able to walk approximately 1/4 of a mile.  

Objectively, his posture was stooped and gait antalgic.  The examiner noted that there was no ankylosis present, either of the thoracic or lumbar spine.  There were no spasms, atrophy, or weakness; guarding, pain with motion, although tenderness was noted.  Decreased vibration sensation of the lower extremities was also present.  Range of motion of the thoracolumbar spine was as follows: flexion was limited to 10 degrees; extension was limited to 5 degrees; left lateral rotation and flexion were limited to 10 degrees; and right lateral rotation and flexion were limited to 10 degrees.  There was objective evidence of pain on active range of motion, as well as additional limitation of motion with repetitive motion.  The examiner expressly noted that there were no incapacitating episodes due to intervertebral disc syndrome, or IVDS. (Emphasis added).  The pertinent diagnoses included degenerative arthritis of the thoracic and lumbosacral spine.  The examiner noted that the back condition prevented sports/exercise/recreation, but the Veteran was able to do chores, shopping, traveling, feeding, bathing, dressing, toileting, and grooming with little to moderate impact. 

In April 2010, the Board sought clarification as to whether the incapacitating episodes of spine disease described in the February 2009 VA examination were consistent with "incapacitating episodes" of IVDS for purposes of an evaluation under Diagnostic Code 5243. 

The Veteran was scheduled for a VA examination in June 2010, but "refused" to attend because his back pain was so severe that he was unable to get out of bed. 

The Veteran underwent a VA examination in August 2010, at which time he reported progressively worsening back pain.  He also stated that he had been receiving epidural injections, along with continued use of Kadian (morphine) with mild results from Dr. Villarreal.  He denied a history of bowel/bladder problems, but endorsed erectile dysfunction, and lower extremity numbness.  

Objectively, his posture was normal but gait was antalgic.  No ankylosis of the thoracolumbar spine was present.  There was guarding, tenderness, and pain with motion.  All planes of motion (i.e., flexion, extension, and right and left lateral rotation and flexion) were limited to 5 degrees.  Objective evidence of pain following repetitive motion was present.  The examiner was unable to test whether there were additional limitations after repetition due to pain.  Lower extremity sensory and motor deficits were noted.  The pertinent diagnosis was degenerative disc disease of the thoracic and lumbar spine, severe.  The examiner stated that the Veteran remains incapacitated on a daily basis and requires assistance from his wife for certain ADL activities.  However, as defined by VA, he has had no prescribed incapacitating episodes in the past 12 months where he is bedridden. (Emphasis added).  

Private treatment records from Dr. Villarreal dated from 2006 to 2010, reflect treatment for lumbar spine pain (with radiation to lower extremities), and diagnoses of lumbar spondylosis, lumbar disc displacement/degenerative disc disease, and stenosis.  Range of motion findings during this four year period ranged from 10 to 25 degrees of flexion; 10 to 25 degrees of extension; and 15 degrees of right and lateral bending.  

VA treatment records dated from 2009 to 2010, show continued complaints of low back pain.  In an August 2009 treatment report, the Veteran stated a typical day involves getting up around 5:00 a.m., taking his medications, doing errands/working on hobbies, resting for 4 to 5 hours (due to being "tired all the time"), watching TV, taking the dog for a 30 minute walk, and going to bed around 8:30 p.m.  

The Veteran underwent his most recent VA examination in August 2012.  His posture was noted as stooped; he walked with cane.  He was able to get up and lay down without assistance during the examination.  Current treatment included lidocaine ointment with patch, as well as spinal cord stimulation.  No prior hospitalizations and/or surgical treatment for back problems were noted. 

Objectively, the contemporaneous EMG found evidence of bilateral sensory motor peripheral neuropathy of the lower extremities due to ankle edema; no radiculopathy was found.  Range of motion findings were as follows: flexion, extension, and right and left lateral flexion were all limited to 10 degrees, with pain commencing at 5 degrees; right and left lateral rotation were limited to 5 degrees, with pain commencing at 5 degrees.  The Veteran stated that he was unable to do the repetitive motion testing (the "Veteran stated that he was unable to do 3 times repetitive range of motion, walk to the examination table, and lays down on the examination table on his right side").  The examiner noted that the Veteran's functional loss/impairment was due to "lack of effort to ROM," or range of motion.  Abnormal gait, muscle spasm, guarding, and abnormal spinal contour were all present.  Decreased sensory, motor, and reflexes of the lower extremities were noted.  The examiner expressly noted that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy.  No other neurological abnormalities were noted by the examiner.  

With respect to IVDS, the examiner noted that the Veteran did not have IVDS.  After a review of all pertinent private and VA records, the examiner also concluded that that had been no evidence of incapacitating episodes requiring bed rest prescribed by a physician, nor had the Veteran presented evidence of such.  The pertinent diagnosis was degenerative joint disease of the thoracic and lumbosacral spine. 

VA treatment records from 2011 to 2012 reflect ongoing complaints of considerable back pain (10/10) and opioid tolerance. 



III.  Analysis 

1. An Increased Evaluation Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes

After a review of the evidence, both lay and medical, the Board finds that the Veteran is not entitled to a disability rating in excess of 40 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes for any period of time covered by the appeal.  

As noted above, a 60 percent disability rating is assigned when intervertebral disc syndrome causes incapacitating episodes having a total duration of at least 6 weeks, during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  The note to this diagnostic code states that incapacitating episodes requires bed rest being prescribed by a physician.  

In this regard, the Veteran did not report any incapacitating episodes upon VA examination in August 2007, nor did the contemporaneous objective findings reflect evidence of such.  However, on February 2009 VA examination, he stated that he experienced incapacitating episodes of spine disease two times per week and that his private physician, Dr. Villarreal had recommended "rest" and pain medication.  Records from Dr. Villarreal were obtained and showed no evidence of physician-prescribed bed rest.  Moreover, after the Board remanded the claim in April 2010 for the specific purpose of determining whether there had, in fact, been incapacitating episodes, the August 2010 VA examiner confirmed that there had been none.  The August 2012 VA examiner likewise confirmed that the Veteran had experienced no incapacitating episodes requiring bed rest prescribed by a physician, nor had the Veteran presented evidence of such. 

In sum, the Veteran has competently and credibly reported experiencing "incapacitating episodes" in which he would essentially seek self-imposed bed rest; however, as noted above, there is no indication in that he has ever been prescribed bed rest for these episodes by a physician.  See Note (1).  Therefore, although the VA February 2009 examiner noted the Veteran's reports of incapacitating episodes and self-imposed bed rest, there is no evidence that he has ever been prescribed bed rest for a total duration of at least six weeks in a 12 month period to allow for a higher, 60 percent evaluation.  As such, the Board finds that a higher disability rating under Diagnostic Code 5243 is not appropriate.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012).

Accordingly, an evaluation in excess of 40 percent is not warranted at any time during the appeal period on the basis of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

2. An Increased Evaluation Under the General Rating Formula For Diseases and Injuries of the Spine

After a review of the evidence, both lay and medical, the Board finds that the Veteran is not entitled to a disability rating in excess of 40 percent under the General Rating Formula for the Veteran's service-connected degenerative joint disease of the thoracic and lumbosacral for any period of time covered by the appeal.  

As noted above, an evaluation in excess of 40 percent under the General Rating Formula requires evidence of unfavorable ankylosis.  "Ankylosis" is defined as the "immobility and consolidation of a joint due to disease, injury, or surgical procedure."  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003); see also, Augustine v. Principi, 18 Vet. App. 505, 506 (2004) (defining "ankylosis" as the "immobility and consolidation of a joint."(citing to DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 86 (28th ed. 1994)).  Put differently, an "ankylosed joint" is one that is fused or obliterated. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY at 93.

In this case, the Veteran has been afforded four comprehensive VA examinations throughout the course of this appeal to assess the severity of his thoracic and lumbosacral spine disability.  His back disability has also been assessed by several private health care providers on numerous occasions between 2006 and 2010.  Significantly, not one of the Veteran's VA or private medical reports note that the spine is ankylosed, either favorably or unfavorably; in fact, VA examiners in 2009 and 2010 expressly denied the presence of any such fixed deformities (ankylosis). 

Moreover, VA and private examination reports have consistently shown that the Veteran retains movement, albeit limited, in the thoracic and lumbar spine.  For example, at his most recent VA examination in August 2012, he demonstrated 10 degrees of flexion, extension, and right and left lateral flexion and rotation of the thoracolumbar spine  - a finding that is inconsistent with ankylosis.  

Indeed, even when considering range of motion being reduced by 50 percent with flare-ups, as estimated upon VA examination in August 2007, the Veteran still retained approximately 30 degrees of flexion; 4 degrees of extension; 10 degrees of right lateral flexion; 7 degrees of left lateral flexion; 5 degrees of right lateral rotation; and 4 degrees of left lateral rotation.  Again, such findings are simply not suggestive of ankylosis.  

The Board acknowledges that the VA and private examination reports overall reflect very limited range of motion due to pain.  In fact, repetitive use testing was not possible due to reported pain in August 2012 (although the VA examiner specifically cited to the Veteran's "lack of effort to ROM" with respect to this finding). See August 2012 VA Examination Report, pp. 8-9.  To the extent that the Veteran's range of motion (or lack thereof) might be construed to be the functional equivalent of ankylosis, the definition of ankylosis described above contemplates an immobilized and consolidated, fused, and/or obliterated joint. See Augustine, 18 Vet. App. at 506; DORLAND'S ILLUSTRATED MEDICAL DICTIONARY at 93.  Here, however, the medical evidence of record reflects that the Veteran continues to have some motion in the thoracolumbar spine, albeit limited, and there has been no finding to date to show or even suggest that the Veteran's thoracolumbar spine was immobilized and consolidated, fused, and/or obliterated.  

Moreover, the pain associated with his motion is fully contemplated in the current 40 percent disability rating, which includes the equivalent of favorable ankylosis, i.e., no effective motion beyond the neutral position. (Emphasis added).  Accordingly, an evaluation in excess of 40 percent is not warranted under the General Rating Formula for any period of time covered by the appeal.

In so finding, the Board has considered the Veteran's statements attesting to his constant pain, stiffness, increased pain with prolonged standing and walking, as well as pain while performing his activities of daily living.  The Board notes that lay persons can attest to observable symptomatology.  In addition, the Veteran's statements describing his symptoms are considered to be competent evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), Layno v. Brown, 6 Vet. App. 465, 469 (1994), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007).  His credibility also is undisputed because no reason is found to doubt him and his statements have been consistent with the evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Macarubbo v. Gober, 10 Vet. App. 388 (1997).  Nonetheless, the objective findings do not support the assignment of a higher rating. 

The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca.  However, these provisions are not for consideration where, as in this case, the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis.  Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997).  

Even if the Board were to apply such provisions, arguendo, an increased disability rating for the Veteran's thoracic and lumbar spine disability is not warranted on the basis of functional loss due to pain/DeLuca as the symptoms are supported by pathology consistent with the assigned 40 percent rating, and no higher.  

In this regard, the Board again observes that the Veteran's competent and credible reports of pain, stiffness, locking, flare-ups, increased pain with prolonged standing and walking, as well as pain while performing his activities of daily living.  The Board also recognizes that he has had severely limited range of motion due to pain.  Even so, the Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish pain, weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased rating.  Indeed, even if it were conceded that the Veteran's pain is so severe as to be fixed in neutral - zero degrees, such a condition (favorable ankylosis) is fully contemplated by the 40 percent rating already assigned.  There is no medical evidence showing that the Veteran's thoracic/lumbar spine is fixed in either a flexed or extended position, and the Veteran has never contended otherwise.  Thus, the criteria for a higher rating for unfavorable ankylosis are not met. 

In conclusion, the Board finds that Veteran's level of disability more closely approximates the criteria for a 40 percent disability rating and a higher disability rating is not warranted.  The Board finds that the preponderance of the evidence is against the Veteran's claim for a disability rating in excess of 40 percent, and therefore the claim must be denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

3. Neurological Considerations

The Board also notes that the rater is to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a , Note (1).  

The Board notes that both erectile dysfunction and lower extremity neurological impairment have been shown by the record to be etiologically related to the service-connected thoracic and lumbosacral spine disability.  During the pendency of this claim, a separate evaluation for erectile dysfunction (and special monthly compensation based on loss of use of a creative organ) was granted.  Likewise, service connection for left and right lower extremity sciatic radiculopathy has been in effect since 2005. See December 2005 Rating Decision.  As such, these issues are no longer for consideration by the Board.  

The Veteran has also consistently denied urinary or bowel impairment, aside from notations of constipation in 2009.  However, it appears that this condition resolved, as evidenced by the most recent VA examination which expressly noted the absence of any such bowel abnormalities.  See August 2012 VA Examination, p. 13.  Thus, a separate disability evaluation for any further neurological impairment is not warranted. 

4. Other Considerations 

Evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient.  See 38 C.F.R. §§ 4.20, 4.27 (2012). Because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating.  38 C.F.R. § 3.321(b) (2012).  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.  Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also, Fisher v. Principi, 4 Vet. App. 57, 60 (1993)("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Therefore, initially, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability.  Thun, 22 Vet. App. at 115. 

If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  In this case, the Veteran's service-connected thoracic and lumbar spine disability is not so unusual or exceptional in nature as to render the assigned rating inadequate.  It is rated under the provisions that specifically contemplate the level of occupational and social impairment caused by this disability. Thun, 22 Vet. App. at 115; see 38 C.F.R. § 4.71a, Diagnostic Code 5243.

When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that manifestations of the service-connected lumbosacral strain with degenerative changes is congruent with the disability picture represented by the disability rating assigned herein.  Indeed, as explained in detail above, the Veteran's symptoms predominately consist of pain, weakness, and decreased range of motion (i.e., forward flexion of the thoracolumbar spine 30 degrees or less, but no ankylosis).  Such symptoms fall squarely within the parameters of the 40 percent rating assigned.  A rating in excess of 40 percent is provided for certain manifestations of lumbosacral spine disabilities, but the medical evidence demonstrates that those manifestations are not present in this case (i.e., unfavorable ankylosis of the entire thoracolumbar spine, or intervertebral disc syndrome causing incapacitating episodes having a total duration of at least 6 weeks, during the past 12 months).  The currently assigned 40 percent disability rating for the Veteran's service-connected degenerative joint disease of the thoracic and lumbar spine reasonably describes the Veteran's disability level and symptomatology due to such service-connected disability and, therefore, a schedular evaluation is adequate and no referral is required.  See 38 C.F.R. § 4.71a; see also, VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). 

Therefore, based on the evidence of record, the Board finds that the Veteran's service-connected thoracic and lumbar spine disability cannot be characterized as an exceptional case so as to render the schedular evaluation inadequate.  The threshold determination for a referral for extraschedular consideration was not met and, thus, the Board finds that a referral for an extraschedular rating is not warranted. Thun, 22 Vet. App. at 115. 

Moreover, because the Veteran is already in receipt of a TDIU, there is no claim for a TDIU reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 




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ORDER


An evaluation in excess of 40 percent for degenerative joint disease of the thoracic and lumbar spine is denied. 




____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs