Citation Nr: 1316665 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 10-05 965 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to an increased disability evaluation for low back strain, currently evaluated as 20 percent disabling. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active service from July 1989 to January 1995. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2007 rating decision. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. The Board remanded the claim in October 2012 in order for additional records to be obtained and for an examination to be provided. The requested development has been accomplished, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board previously referred the issue of entitlement to an earlier effective date for the grant of a 20 percent disability evaluation. At this point, it is unclear whether that claim has been adjudicated and it is therefore referred once again to the Agency of Original Jurisdiction (AOJ) for appropriate action. FINDINGS OF FACT 1. The Veteran has not been prescribed bed rest to treat his service-connected back disability, and he does not have disc disease. 2. Even considering weakness, stiffness, fatigability, pain, lack of endurance, and repetitive motion, the evidence does not show that the forward flexion in the Veteran's back is functionally limited to 30 degrees or less. 3. A chronic neurologic disability has not been associated with the Veteran's lower back disability. CONCLUSION OF LAW Criteria for a rating in excess of 20 percent for low back strain have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. 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 Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran receives a 20 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5237. In May 2007, he filed a claim seeking an increased rating for his back disability . The regulations provide that back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes with a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months; a 40 percent rating is assigned when intervertebral disc syndrome causes 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 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, DC 5243. 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. Id., Note (1). Here, no incapacitating episodes of intervertebral disc syndrome have been noted on either VA examination during the course of the Veteran's appeal. In fact, at the most recent VA examination in November 2012, the examiner specifically indicated that the Veteran did not have intervertebral disc syndrome. Moreover, the evidence of record simply does not show that at least four weeks of bed rest has been prescribed during any twelve month period over the course of his appeal. Neither VA examination reports, nor VA treatment records, show that bed rest was ever prescribed. There was one treatment record in September 2011 in which it was noted that the Veteran had thrown his back out and was laid up in bed with back pain. However, even then, the record does not show bed rest being prescribed, and there is no suggestion that the Veteran was laid up for at least four weeks at that time. While the Veteran's back condition indisputably causes some impairment, the criteria for a rating in excess of 20 percent based on incapacitating episodes of intervertebral disc syndrome have simply not been met. As such, it is more beneficial to evaluate the Veteran's lower back disability under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for a lower back disability when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or when there is vertebral body fracture with loss of 50 percent or more of the height. The next higher rating of 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when 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 assigned when forward flexion of the thoracolumbar spine is 30 degrees or less; and a rating in excess of 40 percent is not available unless either ankylosis or a fractured spine is present. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. With regard to range of motion of the Veteran's back, the evidence does not show that a rating in excess of 20 percent is warranted, as the evidence simply does not demonstrate that the Veteran's forward flexion is functionally limited to 30 degrees or less. In reaching this conclusion, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. However, based on the following evidence, the Board concludes that the forward flexion of the Veteran's back is not functionally limited to 30 degrees. The Veteran has had the range of motion in his lumbosacral spine measured on several occasions during the course of his appeal. However, as will be discussed, the evidence of record does not show that the forward flexion of the Veteran's lumbosacral spine has been functionally limited to 30 degrees. In February 2007, the Veteran sought to establish care at VA at which time it was noted that he had full range of motion in his back. Full range of back motion was also noted at a VA treatment session in March 2008, full forward flexion was noted at a treatment session in May 2008, and normal range of motion was observed in May 2012. The Veteran has also undergone range of motion testing at two VA examinations during the course of his appeal. At a VA examination in May 2009, the Veteran demonstrated forward flexion to 70 degrees with objective evidence of pain on motion. With repetitive motion, the forward flexion was limited to 60 degrees. In his February 2010 substantive appeal, the Veteran asserted that when he tried to bend over his back hurt after approximately 15 degrees, and based on this allegation, the Board remanded his claim for a VA examination. However, at the VA examination in November 2012, the Veteran demonstrated forward flexion to 80 degrees, with painful motion beginning at approximately 30 degrees. The Veteran was able to perform three repetitive motions, which did not decrease the range of motion. The examiner noted that repetitive motion testing caused less movement than normal and was painful on movement. As such, the objective evidence simply fails to corroborate the Veteran's allegation, as not only did the VA examination show forward flexion of 80 degrees, but the Veteran was noted to have normal range of motion in May 2012. This is not to say that the Veteran's range of motion has not been painful or otherwise limited by pain. It clearly has. For example, in April 2009 the Veteran was noted to have pain with range of motion, but no indication was provided as to how limiting the pain was. Likewise, in November 2010, the Veteran asserted that his back was "killing him." However, even if flexion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011) (emphasis added). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. In this case, it does not. In reaching that conclusion, the Board has considered the fact that at the Veteran's most recent VA examination, pain was noted to start at 30 degrees of forward flexion. It is true that a 40 percent rating is assigned when forward flexion is limited, or at least functionally limited, to 30 degrees. However, here, this is not the case as the Veteran still demonstrated forward flexion, albeit painful, to 80 degrees which exceeds the limit for even the 20 percent rating he is currently assigned. As such, the Board, considering the holding in Mitchell, does not believe that the Veteran has been shown to be functionally limited to 30 degrees of forward flexion. Additionally, neither ankylosis, nor any evidence of a vertebral fracture, has been presented or even suggested by the evidence of record, and both conditions were specifically noted not to be present by the VA examiner in October 2012. As such, a higher rating is not warranted on either of those bases. Therefore a rating in excess of 20 percent is not warranted for orthopedic back impairment. However, the regulations also provide that in addition to orthopedic considerations, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. However, in this case, the evidence of record does not support a finding that the Veteran has a chronic neurologic disability as a result of his service-connected back disability, and, overall, provides evidence against such a finding. To this end, the Veteran has complained of pain radiating into his right lower extremity on occasion, but a specific neurologic disability has not been diagnosed. Moreover, neurologic testing has consistently been normal with regard to the Veteran's service connected back disability. For example, at treatment sessions in February 2007, March 2008, and April 2009, the Veteran demonstrated strength of 5/5 in the upper and lower extremities bilaterally and deep tendon reflexes were normal throughout. At a neurosurgery consultation in January 2010, the Veteran stated that he would occasionally experience a shooting pain down one of his legs, but the medical professional noted that he did not have typical lower extremity symptoms, nor did he have any upper or lower extremity weakness. In fact, the physical examination showed normal motor strength in the upper and lower extremities bilaterally; sensation was intact; deep tendon reflexes were symmetrical and physiologic; and neither Hoffman's sign nor pathologic reflexes were present. The examiner in November 2012 also found muscle strength testing was normal in both lower extremities. The Veteran's reflexes were hypoactive, sensory testing was normal, and straight leg raises were negative. The examiner asserted that the Veteran did not have radicular pain or any other signs or symptoms of radiculopathy. The examiner added that the Veteran did not have any other neurologic abnormality or findings related to his back condition such as bowel or bladder incontinence or pathologic reflexes. As such, the Board concludes that a separate neurologic rating is not warranted by the evidence of record. The Board has carefully reviewed the Veteran's statements and treatment records; and recognizes the Veteran's frustration that a higher rating has not been assigned. Unfortunately, as described above, the criteria for what is necessary to merit a rating in excess of 20 percent for a lower back disability is very specific, and the evidence that is of record simply does not show that the Veteran's back meets the criteria for a higher schedular rating. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's lower back disability that would render the schedular criteria inadequate. The Veteran's main symptoms appear to be pain, limitation of motion and spasms, which are all specifically contemplated in the rating assigned. Therefore, the Board concludes that the assigned schedular evaluation reasonably describes the Veteran's back disability. Moreover, even if it were argued that the Veteran's service connected back disability was not adequately described by the schedular rating criteria, the fact remains that the Veteran has not shown any of the "governing norms" of an extraschedular rating. For example, he has not been hospitalized for his back. It is not disputed that the Veteran's back has caused some interference with his work. For example, at the November 2012 VA examination, the Veteran reported experiencing difficulty working beneath truck dashboards on account of his back, but he also acknowledged that he had been able to modify his work techniques so that his overall job performance was not compromised to any appreciable degree. Thus, the Veteran's back disability was not shown to cause marked interference with employment. Accordingly, referral for consideration of an extraschedular rating is not warranted. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Here, the Board acknowledges that the Veteran has not been employed full-time at all times during the course of his appeal, although he does appear to be working currently. He has not, however, alleged that he is, or was at any time, unemployable on account of his service connected back disability. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due to the Veteran's service connected back disability. Therefore, the Veteran's claim for a rating in excess of 20 percent for his lower back disability is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in July 2007, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records have been obtained to the extent available, and there is no indication that the Veteran has been receiving private treatment for his back. Additionally, he was offered the opportunity to testify at a hearing before the Board, but he declined. It is noted that in the October 2012 remand, the Board requested that any VA treatment records from the year prior to the Veteran's claim be obtained. A request was sent to the Iowa City VA Medical Center requesting any treatment records from 2006 to the present. However, a response was received indicating that no records were available from 2006. This finding is consistent with the fact that a February 2007 VA treatment record is in the claims file indicating that the Veteran was attempting to establish care at VA at that time (meaning that logically VA treatment records would not be available from before care had been established at VA). As such, there has been full compliance with the Board's remand instructions and there is no indication that relevant treatment records are outstanding which need to be obtained for a fair adjudication of this appeal. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file) which were thorough and adequate and which provided the information needed to evaluate the Veteran's service connected disability. Additionally it is noted that a second VA examination was obtained upon the Veteran's allegation that his back disability had worsened, and there is no indication that the Veteran's back disability has materially worsened since the October 2012 VA examination. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER A rating in excess of 20 percent for low back strain is denied. ___________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs