Citation Nr: 1315778	
Decision Date: 05/14/13    Archive Date: 05/15/13

DOCKET NO.  10-29 080	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to an initial evaluation in excess of 20 percent for compression fracture lumber level 2 with degenerative joint disease, status post spinal stabilization surgery.


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Devon Rembert-Carroll, Associate Counsel






INTRODUCTION

The Veteran had active service in the Navy from July 1980 to July 1984.

The matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Oakland, California. 


FINDING OF FACT

Compression fracture lumber level 2 with degenerative joint disease, status post spinal stabilization surgery, has been manifested with pain; forward flexion to 60 degrees, even considering functional impairment; and without any neurological abnormalities or incapacitating episodes due to intervertebral disc syndrome (IVDS). 


CONCLUSION OF LAW

The criteria for an initial evaluation in excess of 20 percent for degenerative arthritis of the spine have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes (DCs) 5242, 5243 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Assist and Notify

VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  The Veteran's claim for a higher initial rating for compression fracture lumber level 2 with degenerative joint disease, status post spinal stabilization surgery arises from his disagreement with the initial evaluation assigned following the grant of service connection.  Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

VA also has a duty to assist the Veteran in the development of a claim.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  Here, the Veteran's statements, his service treatment records, and post-service VA and private treatment records have been associated with the claims folder.  The Veteran was afforded a VA examination.  The Board finds that the VA examination obtained is adequate because the examiner conducted a clinical evaluation, reviewed the Veteran's medical history, and described the compression fracture lumber level 2 with degenerative joint disease, status post spinal stabilization surgery in sufficient detail so that the Board's evaluation is an informed determination.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  The Board thus finds that all necessary development has been accomplished and appellate review may proceed.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

Analysis

Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity.  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 disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.  The Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3. 

Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West 12 Vet. App. 119, 126 (1999).  The Veteran is presumed to be seeking the maximum benefit allowed by law and regulation.  AB v. Brown, 6 Vet. App. 35, (1993).

Under the pertinent rating criteria, back disabilities other than intervertebral disc syndrome (IVDS) are to be evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below).  38 C.F.R. § 4.71a, DCs 5235- 5242.  The General Formula for Rating Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, states the following ratings will apply: 

A 20 percent evaluation 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 not 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 evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less, or if there is favorable ankylosis of the entire thoracolumbar spine.  A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent evaluation is warranted for ankylosis of the entire spine.  Id. 

Intervertebral disc syndrome will be evaluated under the General Formula for Rating Diseases and Injuries of the Spine or under the formula for rating IVDS based on incapacitating episodes, 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, DC 5243.  Under the formula for rating IVDS based on incapacitating episodes, a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months.  Higher ratings are warranted for incapacitating episodes of longer durations. 

For purposes of evaluation under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician.  38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. 

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.  Each range of motion measurement is to be rounded to the nearest five degrees.  38 C.F.R. § 4.71a, DCs 5235- 5243, Note (2). 

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45 pertaining to functional impairment.  The Court has 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, incoordination, or pain.  Such inquiry is not to be limited to muscles or nerves.  These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain, or flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). 

The RO granted service connection for compression fracture lumber level 2, with degenerative joint disease, status post spinal stabilization surgery and assigned an initial 20 percent disability evaluation, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242, effective from October 15, 2009.  The Veteran contends that he is entitled to an initial disability rating in excess of 20 percent.

Service treatment records show that the Veteran sustained a spine fracture in May 1982 in a motorcycle accident.  He was treated with open reduction and internal fixation surgery and was placed in a full body jacket until November 1982.  Thereafter, he was on limited duty until May 1983.  

In his April 2010 Notice of Disagreement, the Veteran reported that he has missed a lot of work due to his back pain.  In his June 2010 substantive appeal (VA Form 9) the Veteran stated that he is in a lot of pain and his disability keeps him from being able to perform the same jobs he once did.  

The Veteran was afforded a VA examination in February 2010.  The Veteran reported that he started having back pain five years ago and it is gradually getting worse.  He also stated he has pain in the lower back at all times and the pain is aggravated by prolonged sitting, driving, and walking.  He also reported that he avoids heaving lifting and bending over.  The Veteran stated that his pain occasionally radiates down both legs.  He also stated that he has flare ups that last for a day, two to three times a year.  He stated that he treats the flare ups with rest.  The Veteran reported that he does not have any sensory or motor impairment in the lower extremities and he has control of his bowels and bladder.  

Physical examination showed that the range of motion of the lumbosacral spine was decreased and motions were somewhat painful.  On palpation there was midline tenderness in the lower back area and some paraspinal tenderness.  Range of motion of the lumbar spine included flexion to 60 degrees, extension to 0 degrees, lateral flexion to 50 degrees, bilaterally; and rotation 30 degrees, bilaterally.  Straight leg rising was negative bilaterally.  Deep tendon reflexes of the knees and ankles were 2+ on both sides and symmetrical.  No sensory or motor deficits were noted in the lower extremities.  

With regard to the Deluca factors the examiner noted that after three repetitions there was no additional loss of range of motion or significant aggravation of pain.  The examiner also noted that the Veteran reported having two to three day long flare-ups a year.  However, the examiner stated that it would be mere speculation on his part to guess the degree of impairment due to any additional loss of range of motions or feelings of fatigability during the flare ups. 

X-rays revealed Harrington rods were seen posterior to T12 through L4.  There was a compression fracture of the superior plate of the L2 vertebra, which appeared remote, associated with anterior osteophytes.  The disc space was also somewhat narrowed at the level of L1-L2 and the endplates were irregular with disc space narrowing seen at L2-L3.  The remainder of the disc space of the lumbar spine region was within normal limits, although there were degenerative changes of the disc spaces of T9-T10, T10-T11, and T11-T12.  The alignment was anatomical in the lumbar spine region, particularly at L5-S1.  This was more prominent on the left at L5-S1.  The sacroiliac joints appeared patent bilaterally.  

In addition, the Veteran reported that he works at his family's auto painting shop and mostly performs desk duties. 

The diagnosis was status post spinal stabilization surgery with Harrington rods following L2 compression fracture with degenerative joint disease of the lumbosacral spine and chronic low back pain, but without evidence of lumbosacral radiculopathy.

Private medical records from June 2010 show that Veteran was treated for lower back pain.  The examination found that the Veteran was well developed and nourished, appropriately groomed, and in no apparent distress.  The diagnosis was lower back pain.

A lay statement from the Veteran's former employers dated June 2010 shows that the Veteran had pain that worsened over his period of employment.  The former employers stated that they would have to send the Veteran home on several occasions so he could get relief from his back pain.  They also reported that they tried to give the Veteran office work so he could get off his feet.  

Applying the rating criteria to the evidence, specifically Diagnostic Code 5242 (for degenerative arthritis of the spine), the Board finds that the assignment of an initial 20 percent rating was proper. 

Under DC 5242, a 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less, or if there is favorable ankylosis of the entire thoracolumbar spine.  

There is no evidence of, forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  See Diagnostic Codes 5235-5242.  At the most recent VA examination, the Veteran demonstrated forward flexion of the lumbar spine to 60 degrees, which is higher than the range necessary for a 40 percent rating.  Thus, a higher rating is not warranted based on limitation of motion, even with consideration of the DeLuca precepts.  As noted, at the February 2010 VA examination, the Veteran's lumbar spine range of motion was to 60 degrees of flexion with pain, however, the examiner noted that there was no additional loss of motion or significant aggravation of pain.  There also is no evidence of ankylosis of the spine in the record.  

The Board also notes that the Veteran has reported missing a lot of work.  There is no evidence in the claims file showing that bed rest was prescribed by a physician for (IVDS).  Consequently, the Board finds that this does not rise to an incapacitating episode and does not support a higher rating.  

The rating criteria provide for separate ratings for neurologic and orthopedic manifestations.  However, there is no evidence of any abnormal neurologic manifestations related to the service connected compression fracture lumber level 2, with degenerative joint disease, status post spinal stabilization surgery.  Therefore, a separate compensable rating for neurologic manifestations is not warranted.  As such, an initial 20 percent rating, and no higher, is warranted for the Veteran's compression fracture lumber level 2, with degenerative joint disease, status post spinal stabilization surgery for the entire appeal.  Fenderson v. West 12 Vet. App. 119, 126 (1999).
Finally, the Board has also considered the scar in the evaluation of the service-connected back disability.  The February 2010 VA examination indicates a nine inch surgical scar which is over the whole of the lumbar spine extending to the sacrum.  It is midline and 0.25 inches wide.  It is lighter than the surrounding normal skin.  It is not thickened or keloid or pigmented.  It shows no sign of ischemia or ulceration and it is not adherent to the underlying tissue and it does not limit function.  The examiner noted that the Veteran had no symptoms relating to the scar.  There is no evidence that the spine scar is painful, unstable, deep and nonlinear, covers an area of 144 square inches or more, or limits function of the spine in any way.  As such, a separate, compensable rating for the residual scar is not appropriate.  See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (2012).

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present 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 extraschedular disability rating must be 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).  In this case, the Veteran's compression fracture lumber level 2 with degenerative joint disease, status post spinal stabilization surgery disability is productive of pain and limited motion and these manifestations are contemplated in the respective applicable rating criteria. Moreover, the Board notes the Veteran's argument that he missed days of work due to back pain, however, the Board finds that the 20 percent rating adequately compensates him from any loss time and the Veteran has not submitted any evidence indicating otherwise.  The June 2010 employer statement relates that the Veteran worked with them from 1984 to 2005, over 20 years.  While they mentioned that they would send the Veteran home on several occasions due to back pain, there was no indication that it had a significant impact in his earning capacity.  They noted that they would find other duties for him when he had back problems, and that he would take over the counter medication to manage his pain when he was working.  The percentage ratings represent as far as practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  See 38 C.F.R. § 4.1 (2012).  In light of the foregoing, the Board concludes that the rating criteria are adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted.  

The Court has held that entitlement to a TDIU is an element of all appeals for a higher rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. As there is no evidence of unemployability, as the Veteran is currently employed, the question of entitlement to a TDIU is not raised.


ORDER

An initial rating in excess of 20 percent for compression fracture lumber level 2 with degenerative joint disease, status post spinal stabilization surgery, is denied.



____________________________________________
K. Osborne
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs