Citation Nr: 1315889 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 09-06 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial disability rating higher than 10 percent for lumbosacral degenerative disc disease with strain. ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1999 to July 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2008 of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted service connection for a low back disability and assigned an initial 10 percent disability rating. This case was previously before the Board in October 2011, when it was remanded for further development, to include obtaining an additional VA examination. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT From the date of claim, the Veteran's degenerative disc disease of the lumbar spine with strain has been manifested by muscle spasm and pain and limitation of motion to no less than 70 degrees of flexion; further functional limitation, incapacitating episodes, ankylosis or neurologic impairment have not been shown. CONCLUSION OF LAW The criteria for an initial disability rating higher than 10 percent for degenerative disc disease of the lumbar spine with strain have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify The Veteran's appeal arises from the initial rating following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as 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). Therefore, no further notice is needed under VCAA. Duty to Assist This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012); 38 C.F.R. § 3.159. The Veteran was afforded a VA examination in April 2008 in connection with his original claim of service connection for low back disability. He was also provided additional VA examinations in September 2009 and January 2012. The Board notes that the VA examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating purposes. Although the January 2012 examiner recommended that the Veteran be evaluated by an orthopedist to evaluate his limitation of motion. The Veteran was scheduled for this examination in March 2013 but did not report. The letter notifying him of the examination is not in the claims file. The RO did; however, issue a supplemental statement of the case in March 2013 that told the Veteran of its finding that he had not reported for the scheduled examination and had not provided a reason for this failure; it also informed him of the provisions of 38 C.F.R. § 3.655(a),(b) (2012), essentially requiring that the disability be rated on the basis of the evidence of record. The Veteran did not respond or otherwise indicate that he received inadequate notice of the scheduled examination. Thus, the Board will adjudicate the matter based on the evidence of record. The record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder which comprises the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's October 2011 remand, the Veteran was provided an additional VA examination in January 2012 to evaluate any neurological abnormalities associated with his low back disability. At that time, the examiner indicated that an orthopedic examination would be more helpful in ascertaining precise range of motion findings; and as just noted, the Veteran did not report for the scheduled examination. . Thus VA has complied with the October 2011 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Assigning Disability Ratings A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In this instance, the disability picture relative to the Veteran's low back disability has been consistent throughout the appeals period and staged ratings are not warranted. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 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, flare-ups, or pain. 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 basis of disability evaluation 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. Rating Disabilities of the Spine Disabilities of the Spine may be rated either based on range of motion under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or based on incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The General Rating Formula provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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. 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 the entire spine. 38 C.F.R. § 4.71a. The criteria for rating a disability of the spine are to be applied regardless of the presence or absence of 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. 38 C.F.R. § 4.71a. The IVDS Formula provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with 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. Note (1) to Diagnostic Code 5243 provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Facts The Veteran sustained an injury to his low back in service. Diagnostic testing in October 2007 showed severe bilateral foraminal narrowing at L5 as a result of an annular bulge, as well as left central disc herniation at L4-5. He applied for service connection as part of the Benefits Delivery at Discharge program. On VA examination in April 2008, the Veteran reported pain in the lower back on a constant basis which radiated to both lower extremities. It was elicited with physical activity and relieved with rest or pain medication. There was no physician recommended incapacitation, other types of treatment, history of surgery or prosthesis. Examination of the lumbar spine revealed no radiation of pain on movement or muscle spasm; there was palpable tenderness of the spinous processes but not the paravertebral musculature. Straight leg raising test was negative bilaterally in the supine and sitting positions. There was no ankylosis or deformity. Range of motion testing revealed full normal range of motion in the thoracolumbar spine, with no additional limitation after repetitive testing. There was no abnormal curvature of the spine and no evidence of intervertebral disc syndrome or specific spinal nerve root involvement. In his Notice of Disagreement filed in August 2008, the Veteran argued that his low back disability had limited his activities for over five years, with worsening symptoms in the past two years. He noted that he had been offered surgical procedures and narcotic medication to treat his disability, but had declined and that recent research confirmed such treatment would do little to resolve his symptoms. He asserted that the range of motion results listed must be incorrect because most days he could not flex beyond 30 degrees without daily pain medication. Finally, the Veteran took issue with the rating criteria for IVDS, noting that bed rest was now considered to be one of the worst ways of treating a person with back problems because it only exacerbated the condition. In his VA Form 9 Substantive Appeal filed in February 2009, the Veteran stated that he felt a 30 or 50 percent disability rating would be appropriate for his disability. On VA examination in September 2009, the Veteran reported numbness, paresthesias, weakness in legs and feet, decreased motion, stiffness, spasm, and pain. He complained of radiating pain in his thighs and flare-ups occurring as often as once a week, which caused a 30 percent reduction in his range of motion. His pain was exacerbated by standing for longer than a few minutes and lifting anything over 40 pounds; pain was relieved with medication, stretching exercises, and sleeping with a pillow under his knees at night. He stated that in the past 12 months he had been incapacitated for 48 hours by severe pain after lifting and shifting a lot of luggage as part of a Christmas road trip. He was able to walk up to three miles at a time. On physical examination, his posture and gait were normal; he had guarding, tenderness, and weakness in the lumbar spine but no abnormal spinal contours. Testing showed normal motor responses, normal sensory perception, and normal reflexes in both lower extremities and there was no evidence of atrophy. Range of motion testing showed flexion to 90 degrees with pain at 70 degrees, extension to 30 degrees with pain at 20 degrees, lateral flexion to 30 degrees with pain at 20 degrees bilaterally, and rotation to 30 degrees with pain at 20 degrees on the left side and at 10 degrees on the right side. There was moderate impact on the Veteran's activities of daily living, especially with respect to chores and exercise, and he had increased pain after driving for longer than 3 hours. On the January 2012 VA examination, the Veteran reported an episodic, "roller coaster" pattern of back pain, with flare-ups of severe pain once a month for 3-4 days at a time. He reported bilateral pain in his buttocks, thighs, and back radiating down to his bilateral knees. He said he spent his day doing stretching exercises and varying his body positions. He experienced some overt numbness but not necessarily paresthesias. In addition to the ongoing daily constant pain of a 3-4 day flare up, he reported superimposed sharp jabs of pain (in the same distribution) that caused significant weakness that would cause his knees to buckle; he had not fallen but had to hang onto something to prevent this. During a flare up, he still went to work, but would stay at home if his employer had a more liberal sick leave policy; at home, he delegated work while lying on the couch. Physical examination showed tenderness to palpation and he had some restriction of active motion. Motor and deep tendon reflexes were intact and his sensory perception was largely normally, although there was some indication of reduced sensation in the posterior thighs. Based on the examination, the VA neurologist concluded that the Veteran did not have any neurologic deformities as a result of his low back disability. Although the Veteran reported bilateral left greater than right back, buttock, and posterior thigh pain and reported numbness, he had no reproducible sensory deficit and no specific nerves involved. The examiner indicated that the Veteran did not have IVDS because there were no identifiable, lateralizing radiculopathy symptoms. Rather, the examiner felt that the Veteran had chronic low back pain related to mild spinal stenosis versus spondylosis vs. lumbar degenerative joint disease. He was able to go to work even with the flare up back pain, albeit not by preference, and had some degree of pain even when not experiencing a flare up that affected his ability to perform household duties. The Veteran's reported buttock and thigh pain and numbness suggested a neurovascular irritation/compromise possibly caused by his identified moderate degenerative joint disease. The examiner described the Veteran's low back pain syndrome as being of mild intensity, which left him unable to participate in daily activities at home during a flare up. The flare-ups caused a loss of strength and increased pain and fatigability. Analysis The Veteran's range of motion testing on examination has been consistent with the criteria for a 10 percent disability rating at most. On the September 2009 VA examination, the Veteran's forward flexion was restricted by pain to 70 degrees of flexion. Prior to that examination, the Veteran had objective evidence of muscle spasm which did not result in an abnormal gait or spinal contour. The 2009 examination reports a 30 percent reduction in range of motion due to flare-ups. This would equate to limitation of forward flexion to 60 degrees, but would not approximate the criteria for a rating in excess of 10 percent, which require limitation of motion to less than 60 degrees. The 2009 examination found no limitation of flexion to less than 70 degrees with consideration of functional factors-such as pain on repetitive motion. Thus, the 10 criteria for a 10 percent disability rating have been met since the date of the claim. A higher disability rating, to include 20 percent as well as the 30 to 50 percent explicitly sought by the Veteran, is not warranted based on the evidence. A 20 percent disability rating requires limitation of motion to at least 30 but no more than 60 degrees of flexion, or a combined range of motion no greater than 120 degrees, or muscle spasm or guarding resulting in abnormal spinal contour or abnormal gait. In this instance, the Veteran does not have an abnormal gait or spinal contour. Considering the Veteran's range of motion based on where his pain begins, he has more than 60 degrees of flexion (70 degrees on September 2009 VA examination) and more than 120 degrees of motion combined (70 + 20 + 20 + 20 + 20 + 10 = 160 degrees). The criteria for a 20 percent disability rating based on restriction of motion are not met. Further, the criteria for a 40 percent disability rating, that is, ankylosis of the thoracolumbar spine or less than 30 degrees of flexion, and the criteria for a 50 percent disability rating, unfavorable ankylosis of the thoracolumbar spine, are likewise not met. The Board acknowledges the Veteran's written statements that he is barely able to perform 30 degrees of flexion and that only with the help of daily painkillers. While he is considered competent to provide evidence as to his own experiences and symptoms, particularly in light of the medical training associated with becoming a psychiatrist, the Board assigns less evidentiary value to the Veteran's estimation of his range of motion than to the results recorded by two separate trained medical experts performing tests in accordance with accepted procedures. Further, the Board notes that the January 2012 VA neurology examination, while not yielding specific range of motion figures, included a statement that the Veteran was able to bend forward and bring his fingertips within two inches of the floor. And sit with his back flexed at 90 degrees. These findings are consistent with the previous two examiners findings that the Veteran had full range of motion, albeit with pain beginning at 70 degrees of flexion. Moreover, the assigned 10 percent rating takes into account the Veteran's complaints of pain and reduced range of motion during flare-ups. With respect to the question of separate compensable ratings for neurological manifestations of low back disability, the Board finds that there is no evidence of compensable neurological abnormalities in this case. While the Veteran does experience some radiating pain and numbness, the January 2012 VA examination by a neurologist concluded that there were no nerves affected by the low back disability and no reproducible sensory deficit. It was the examiner's belief that the symptoms complained of by the Veteran were neurovascular manifestations of his low back pain and arthritis. The Board notes the Veteran's arguments regarding the rating criteria of the Diagnostic Codes and the fact that many of the treatment modalities formerly used for low back pain are no longer appropriate. Specifically, the Veteran has asserted that the IVDS Formula, based on incapacitating episodes of physician-ordered bedrest is unrealistic, given that increased movement is more helpful to those with low back pain. The Board is bound by the laws and regulations as presently constituted, including the Diagnostic Codes and rating criteria. In assigning disability ratings, the goal is to best match the Veteran's symptoms and functional limitations to those described in the criteria in order to most closely approximate the amount of disability resulting to the Veteran. The Board cannot change the rating criteria for the adjudication of a specific claim, which seems to be the remedy suggested by the Veteran here. Instead, the Board has determined that the symptoms and manifestations relative to incapacitating episodes are not consistent with the criteria under Diagnostic Code 5243 or the IVDS Formula and has not applied those criteria in evaluating the current claim, which is consistent with the Veteran's assertions that he does not follow this treatment practice. In conclusion, all of the considerations set forth above demonstrate that the currently assigned 10 percent disability rating is appropriate. The criteria for a higher disability rating have not been met. Extraschedular and Total Rating Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology as a result of his low back pain, to specifically include minor limitations of motion and flare-ups due to prolonged standing or sitting or lifting more than 40 pounds. In addition, the criteria provide for higher ratings for more severe symptoms such as a further reduced range of motion. As the disability pictures are contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). The Court has held that entitlement to a total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2008). TDIU is not for consideration, absent evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). In this case the evidence indicates that the Veteran has been employed as a psychiatrist since the effective date of service connection. There is no evidence that this employment is marginal. Hence, TDIU is not for consideration. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial disability rating higher than 10 percent for lumbosacral degenerative disc disease with strain is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs