Citation Nr: 1318001 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-18 896A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent before October 13, 2009 for service-connected lumbar paravertebral myositis. 2. Entitlement to a disability rating in excess of 40 percent effective October 13, 2009, for service-connected lumbar paravertebral myositis (the "back disability"). REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from June 1976 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by which the RO denied entitlement to an evaluation in excess of 20 percent for service-connected lumbar paravertebral myositis. The Veteran perfected an appeal in June 2009. Thereafter, via August 2010 rating decision, the RO granted an increased rating of 40 percent to the service-connected low back disability effective October 13, 2009. In September 2012, this matter was before the Board. Although the Board stated the issue correctly, the Board erred in identifying the rating decision from which this appeal stems. The Board indicated that this matter resulted from an appeal of an August 2003 rating decision, apparently because the Board overlooked the December 2007 Board decision. The Veteran is not prejudiced by the Board's oversight because, again, the Board stated the issue correctly. As stated, in August 2010, the RO granted an increased (40 percent) rating for the service-connected lumbar paravertebral myositis. Although each increase represents a grant of benefits, the United States Court of Appeals for Veterans Claims (Court) has held that a decision awarding a higher rating, but less that the maximum available benefit does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, this matter continues before the Board. In September 2012, the Board remanded this matter for further development of the evidence, which has been accomplished satisfactorily. Thus, this case is appropriately before the Board. See generally Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Before October 13, 2009 the Veteran's lumbar paravertebral myositis has been manifested by no more than pain, limitation of motion, guarding, spasms and forward flexion of the thoracolumbar spine to, at worst, 40 degrees without ankylosis. 2. Effective October 13, 2009, the Veteran's lumbar paravertebral myositis has been manifested by no more than pain, limitation of motion, guarding, spasms, frequent flare-ups and no unfavorable ankylosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 20 percent before October 13, 2009 for the Veteran's service-connected thoracolumbar spine disability consisting of lumbar paravertebral myositis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2012). 2. The criteria for entitlement to a disability evaluation in excess of 40 percent effective October 13, 2009 for the Veteran's service-connected thoracolumbar spine disability consisting of lumbar paravertebral myositis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected low back disability consisting of lumbar paravertebral myositis has been rated 20 and 40 percent disabling at various points during the appeal period under the provisions of Diagnostic Code 2537. 38 C.F.R. § 4.71a. With the possible exception of intervertebral disc syndrome, disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine provide as follows: 100% - Unfavorable ankylosis of the entire spine; 50% - Unfavorable ankylosis of the entire thoracolumbar spine; 40% - Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; 30% - Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; 20% - Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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; See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2012) (unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides as follows: A 60 percent disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent disability rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent disability rating is warranted with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 10 percent disability rating is warranted with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. Note (1): For purposes of evaluations under Diagnostic Code 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. For purposes of VA compensation, 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. 38 C.F.R. § 4.71, Plate V (2012). In June 2008, the Veteran was afforded a VA spine examination. The examiner indicated that the claims file was not available for review. The Veteran reported lumbar pain that lasted two to four hours a day that was a six in intensity on a scale of one to 10. He used non-steroidal anti-inflammatory drugs (NSAIDs), which offered some relief. There were monthly flare-ups lasting hours that consisted of pain that was a nine on a scale of one to 10. The Veteran used no devices to assist in ambulation such as a cane, but he used a back brace. He could walk 30 to 40 minutes. There was no history of falls. The Veteran was independent in the activities of daily living, and the examiner noted that the Veteran was employed by VA. Range of motion of the thoracolumbar spine was as follows: forward flexion was from zero to 90 degrees and "functional loss of 50" due to pain; extension was from zero to 30 degrees and "functional loss of 20" due to pain; left and right lateral flexion was from zero to 30 degrees and "functional loss of 15" due to pain; left and right lateral rotation was from zero to 30 degrees and "functional loss of 15" due to pain. There was objective evidence of spasms in the lumbosacral area, and there was tenderness and guarding of the lumbosacral spine. There was some reversed lordosis. The examiner indicated that there was no ankylosis. The Veteran expressly denied incapacitating episodes in the previous 12 months. The examiner diagnosed lumbar strain. A February 2009 lumbosacral spine X-ray study revealed mild disc space narrowing at L1-L2 and L2-L3 with early discogenic disc disease. There was lumbar spondylosis and straightening of the lumbar curvature, probably on the basis of paravertebral muscle spasm. In a February 2009 written statement, the Veteran's sister described an incident in which it was difficult for the Veteran to get out of the car and subsequently to get back into the car due to pain. The sister did not specify the source of the pain. February 2009 private treatment records reveal that the Veteran was told to rest due to a diagnosis of lumbosacral strain. An April 2009 follow-up examination revealed that the Veteran was "cured" and was not incapacitated. A March 2009 magnetic resonance imaging (MRI) revealed lumbosacral spine degenerative changes, some disc bulging, and some disc herniation. In an April 2009 written statement, the Veteran indicated that he had "no lateral movement." On October 13, 2009, the Veteran was afforded another VA spine examination. At that time, the claims file was not available for review. The Veteran described pain that was a seven in intensity on a scale of one to 10 that lasted four to six hours a day. He used NSAIDs, which offered mild relief, as well as a muscle relaxant that also offered some mild relief. The Veteran experienced weekly flare-ups wherein low back pain was a nine on a scale of one to 10. These lasted several hours. The flare-ups were alleviated with medication. There was no additional limitation of motion or functional impairment during flare-ups. The Veteran walked unaided and did not require a cane or similar assistive device for ambulation. He did use a back brace. The Veteran could walk 30 to 40 minutes, and he did not have a history of falls. The Veteran was completely independent in the activities of daily living as well as at work. Range of motion of the thoracolumbar spine was as follows: forward flexion was from zero to 90 degrees with functional loss of 60 degrees due to pain. Extension was from zero to 30 degrees with functional loss of 20 degrees due to pain. Lateral flexion was from zero to 30 degrees bilaterally with functional loss of 20 degrees due to pain. Lateral rotation was from zero to 30 degrees bilaterally with functional loss of 10 degrees due to pain. No weakness of fatigue was observed. However spasms were palpated, and guarding was observed. The Veteran's gait was normal, and there were no muscle spasms or guarding severe enough to cause an abnormal gait or abnormal spinal contour. There was no ankylosis. The examiner diagnosed lumbar strain that was moderate to severe in nature. In February 2011, the Veteran sought medical treatment because he had difficulty rising after bending to look through boxes at work. He was to continue receiving treatment but was able to work. A September 2011 MRI of the thoracic spine revealed degenerative changes. A May 2012 MRI of the lumbosacral spine showed mild degenerative disc disease and some disc abnormalities. On October 2012 VA spine examination, the examiner noted that the Veteran suffered from lumbar myositis and from thoracolumbar spine degenerative disc disease. Apparently, the Veteran reported that he was evaluated by state fund insurance due to an accident while looking through records. He developed low back pain and indicated that he was away from work for four months. He stated that he did not report to work when pain was severe, but he denied medical care or certification for bed rest during exacerbations. The Veteran indicated that he had problems when he began to walk. He could not use standard transmission cars. He was using several medications to alleviate symptoms. During flare-ups, the Veteran indicated that he was unable to drive or work. Forward flexion of the lumbosacral spine was to 45 degrees with evidence of painful motion at 40 degrees. Extension was to 15 degrees with evidence of painful motion at 10 degrees. Right lateral flexion was to 25 degrees with evidence of painful motion at 20 degrees. Left lateral flexion was to 25 degrees with evidence of painful motion at 15 degrees. Right lateral rotation was to 20 degrees with evidence of painful motion at 15 degrees. Left lateral rotation was to 15 degrees with evidence of painful motion at 10 degrees. The Veteran was able to repeat range of motion exercises three times. After three repetitions, forward flexion was to 50 degrees, extension was to 20 degrees, bilateral lateral flexion was to 30 degrees, right lateral rotation was to 25 degrees, and left lateral rotation was to 15 degrees. There was no additional limitation of motion following repetitive-use testing. There was functional loss and/or functional impairment of the thoracolumbar spine in that there was pain on movement. The examiner noted that there was greater range of motion after repetitive-use testing. There was no guarding. The examiner indicated that the Veteran had intervertebral disc syndrome without any incapacitating episodes in the previous 12 months. The Veteran used a back brace on occasion. The examiner indicated that the Veteran's low back disability had an impact on his ability to work in that he failed to report to work two or three days a month. The examiner indicated that the claims file was reviewed. The Board notes that "incapacitating episodes" as defined under Diagnostic Code 5243 have not been shown at any time, either before or after October 13, 2009, as bed rest has never been prescribed by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). As such, an increased rating for intervertebral disc syndrome under Diagnostic Code 5243 need not be considered. The Board does recognize that the Veteran was advised to "rest" in February 2009. There is no indication, however, that bed rest was required. Again, therefore, in the absence of bed rest prescribed by a physician at any time at issue herein, the Board need not consider increasing the Veteran's low back disability evaluation under the criteria for intervertebral disc syndrome based on incapacitating episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243 and Note (1). Furthermore, as unfavorable ankylosis of the entire thoracolumbar spine has not been shown either before or after October 13, 2009, an evaluation in excess of 40 percent is precluded under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The question that remains is whether an evaluation in excess of 20 percent is warranted before October 13, 2009. The Board concludes that it is not. On VA examination in June 2008, forward flexion of the thoracolumbar spine was from zero to 90 degrees and "functional loss of 50" due to pain. The Board can interpret the foregoing as a 50 degree loss of range of motion or a 50 percent loss of range of motion. In the former case, forward flexion of the thoracolumbar spine would be to 40 degrees. In the latter case, forward flexion would be to 45 degrees. In affording the Veteran the benefit of the doubt, the Board finds that forward flexion was limited to 40 degrees due to pain. A 40 percent evaluation requires that forward flexion of the thoracolumbar spine be to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. At worst, forward flexion before October 13, 2009 was to 40 degrees. Moreover, no favorable ankylosis was shown. Thus, despite the Veteran's recognized low back disability, which included pain, guarding, and muscle spasms before October 13, 2009, the criteria for a 40 percent evaluation for the service-connected thoracolumbar spine disability are not met or more nearly approximated, and a 40 percent evaluation cannot be assigned before October 13, 2009. Id.; 38 C.F.R. § 4.7. In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 (2012) allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 (2012) provides that consideration also be given to weakened movement, excess fatigability, and incoordination. Functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements has not been shown. As well, all of the Veteran's symptoms have been taken into account in consideration of whether an increased rating is warranted. Thus, these provisions need not be considered further. See 38 C.F.R. § 4.14 (2012) (the regulation that prohibits pyramiding, namely being compensated for the same symptom more than once). Without taking into consideration the Veteran's statement and the statement he has submitted on his behalf, there would be limited objective evidence to support the current evaluation, let alone higher a higher evaluation. It is with consideration of the Veteran's pain that the 40 percent evaluation can be justified, but no greater. The Court has held that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total disability rating based on individual unemployability (TDIU) as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that a claim for a TDIU is not raised by the record. Specifically, the evidence of record fails to show that the Veteran is unemployable, and neither the Veteran nor his representative has contended as much. The Board notes that the Veteran has been employed throughout the appeal period. Therefore, the Board finds that no further consideration of a TDIU is warranted. Id. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Extraschedular Consideration The Board has considered whether an extraschedular evaluation would have been warranted for the low back disability at issue herein. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (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. Therefore, 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. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine 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"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Before discussing further entitlement to an extraschedular evaluation, the Board notes that it has considered Mittleider v. West, 11 Vet. App. 181 (1998) and has considered all potentially service-connected symptoms. The Board finds that the schedular rating criteria contemplate the Veteran's service-connected thoracolumbar spine disability. The service-connected thoracolumbar spine disability rating criteria specifically provide for ratings based on the presence of painful arthritis, limitation of motion of the spine (including due to pain and other orthopedic factors; see 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca), and incapacitating episodes. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] 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." 38 C.F.R. § 4.1 (2012). In this case, the problems reported by the Veteran (pain, limitation of motion, the need for a back brace, and spasms) are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the Veteran's service-connected thoracolumbar spine disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the Board finds the weight of the evidence is against a finding of an increased disability rating in excess of 20 and 40 percent (at various times during the appeal period) for the service-connected thoracolumbar spine disability. As explained above, to the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit- of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in June 2008 that fully addressed all three notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159. 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). The RO has obtained the service treatment records, relevant VA clinical records, and private medical records. The Veteran was afforded adequate VA medical examinations in furtherance of the claims. The examination reports were thorough and took into account objective evidence as well as the Veteran's subjective complaints overall. The Board is aware that on two occasions, the examiners did not have access to the claims file. This fact is of minimal importance herein because the issues concern the present level of disability, which the examiners were able to observe and the Veteran was capable of describing. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. 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). ORDER An evaluation in excess of 20 percent before October 13, 2009 for service-connected lumbar paravertebral myositis is denied. An evaluation in excess of 40 percent effective October 13, 2009 for service-connected lumbar paravertebral myositis is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs