Citation Nr: 1318920 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-34 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a rating higher than 40 percent for a lumbosacral strain. ATTORNEY FOR THE BOARD G. Slovick Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to January 1971 and from July 1974 to June 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2009, the Veteran withdrew his request for a hearing before the Board. The Veteran was represented by Disabled American Veterans (DAV). In April 2013, the Veteran revoked the power of attorney in favor of DAV and is proceeding without representation. FINDING OF FACT Lumbosacral strain is manifested by forward flexion of the thoracolumbar spine greater than 60 degrees without ankylosis or objective neurological abnormality or incapacitating episodes having a total duration of at least six weeks during a 12 month period. CONCLUSION OF LAW The criteria for a rating higher than 40 percent for lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5237 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to the effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter in March 2009. The Veteran was notified of the type of evidence to substantiate the claim for a higher rating, namely, evidence to show that the disability was worse and the effect of the worsening on employment and daily life. Additionally, the Veteran was notified that VA would obtain VA records and records of other Federal agencies and that he could submit private medical records or authorize VA to obtain private medical records on his behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable for the claim. As for content and timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence), of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of a claim for service connection); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir. 2009) (claim-specific notice, namely, a worsening or increase in severity of the disability and the effect that worsening has on employment). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO obtained VA records. The Veteran has not indicated that he receives disability benefits from the Social Security Administration. The Veteran was afforded a VA examination in March 2009. As the report of the VA examination included a review of the medical history and sufficient findings to rate the disability, the VA examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Veteran indicated that he was poorly treated at the examination. In October 2012, the Veteran stated that he did not wish to and would not take another examination. As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Rating Policy 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Rating Criteria Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. Ratings under the General Formula are made with or without 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. Under the General Formula, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code for the neurologic abnormality. Under the General Formula, the criterion for the next higher rating, 50 percent, is unfavorable ankylosis of the entire thoracolumbar spine. Ankylosis is immobility and consolidation of a joint due to disease, injury or surgical procedure. 38 C.F.R. § 4.71a. Under the General Rating Formula, Note (5), fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the criteria for a 60 percent rating are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 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. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion, weakness, or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Spinal vertebrae are considered groups of joints. As for joints, the factors of disability reside in reductions of the joints normal excursion of movements in different planes. Factors for considerations include excess fatigability, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing. 38 C.F.R. § 4.45; DeLuca, at 206-07. Evidence In a statement in April 2008, the Veteran stated that his disability was worse as he had problems sleeping due to discomfort. He stated that his medication was no longer effective and that his pain increased with physical activity. In October 2008, the Veteran submitted the current claim for increase and in a rating decision in May 2009, the RO continued the 40 percent rating. VA records show that in January 2009 the Veteran complained of chronic low back pain and radiating pain. On VA examination in March 2009, the Veteran complained of pain, which was worse with physical activity and relieved by rest, medication, and physical therapy. The Veteran stated that he could function with medication. He wore a back brace. The Veteran stated that he could not walk long distances or play golf. On physical examination, the spine appeared normal and there was no radiation of pain on movement. There was no muscle spasm. There was tenderness. The straight leg raising was negative. The lumbar spine was not in a fixed position. For range of motion, flexion was to 61 degrees and extension was to 20 degrees with pain. Right lateral flexion was to 15 and left lateral flexion was to 18 degrees. Right rotation was to 15 degrees and left lateral rotation was to 20 degrees. All with pain. Pain, fatigue, weakness, and lack of endurance were factors after repetitive use. Incoordination was not found. There was no additional limitation in range of motion after repetitive testing. Inspection of the spine revealed normal position of the head and normal symmetry in appearance of the spine. There was normal curvature of the spine and interveretrbal disc syndrome was not found. Reflexes were 1+ at the knees and ankles. There were no bowel, bladder, or erectile abnormality. Sensation testing was normal and motor strength was normal. In October 2012, the Veteran stated that he did not wish to take another VA examination. Analysis In the absence of unfavorable ankylosis of the entire thoracolumbar spine, the criterion for a 50 percent under the General Rating Formula has not been met. In the absence of intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks in the past twelve months, the criteria for the 60 percent rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes have not been met. The Veteran does not have objective neurological abnormalities to rate separately. While back pain is the predominant finding, the pain does not raise to the level of the criteria for the next higher rating. See Mitchell v. Shineski, 25 Vet. App. 32, 43 (2011) (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40). As the preponderance the evidence is against the claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Extraschedular Consideration While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether a claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available scheduler 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 disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned scheduler evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria reasonably describe the Veteran's disability of the lumbar spine. In other words, the Veteran does not experience any symptomatology not already encompassed in the Rating Schedule and the assigned scheduler rating is therefore adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). Total Disability Rating for Compensation based on Individual Unemployability The Veteran has not raised the claim for a total disabled rating for compensation based on individual unemployability and the claim is not reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). `ORDER A rating higher than 40 percent for lumbosacral strain is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs