Citation Nr: 1319728 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-42 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial increased rating for lumbar spine degenerative disc disease (DDD), currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active service from June 1963 to June 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted the Veteran's claim for service connection for lumbar spine degenerative disc disease, evaluating it as 10 percent disabling, and denied the Veteran's claim for service connection for tinnitus. In his December 2008 notice of disagreement (NOD), the Veteran sought a disability rating greater than10 percent for the service-connected low back disability, and appealed the denial of service connection for tinnitus. Before the matter was transferred to the Board, by a March 2010 rating action, the RO granted service connection for tinnitus, and evaluated it as 10 percent disabling, effective July 12, 2007. The Board finds that the grant of service connection for this disability constitutes a full award of the benefit sought on appeal with respect to the tinnitus issue. See Grantham v. Brown, 114 F. 3d 156, 1158 (Fed. Cir. 1997). FINDING OF FACT The Veteran's lumbar spine DDD has not been productive of forward flexion less than 60 degrees; a combined range of motion of 120 degrees or less; and, there is no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. CONCLUSION OF LAW The schedular criteria for an initial evaluation greater than 10 percent for the service-connected DDD of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Codes 5235-5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, during the pendency of the appeal. See 73 Fed. Reg. 23353 -56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the Veteran to provide any evidence in the Veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The Board finds that all notification and development action needed to render a decision on the claim on appeal has been accomplished. Through a September 2007 notice letter, the RO notified the Veteran of the information and evidence needed to substantiate his underlying service connection claim. Thereafter, the Veteran was afforded the opportunity to respond. In addition, the Veteran was provided notice concerning the assignment of rating criteria and effective dates via the September 2007 letter. Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate his claim that is the subject of this decision, and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the September 2007 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the RO notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Thus, the Board finds that "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini v. Principi, 18 Vet. App. 112, 122 (2004). In addition, the Veteran was given the opportunity to respond following the September 2007 notice letter. In any event, as is the case here, once a veteran disagrees with an initial determination, other provisions apply to the remainder of the adjudication process, particularly those pertaining to the issuance of rating decisions and statements of the case. See 38 U.S.C.A. §§ 5104(a), 7105(d) (West 2002); 38 C.F.R. §§ 3.103(b)(1), 19.29 (2010); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); see also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). Nothing about the evidence or any response to the RO's notification suggests that the rating issue must be re-adjudicated ab initio to satisfy the requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim decided herein. The Veteran's service treatment records as well as all identified and available VA medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's rating claim. Indeed, at no time has the Veteran referenced outstanding records that he wanted VA to obtain or that he felt were relevant to his claim. Moreover, in addition to obtaining all relevant records, the Veteran was also afforded VA examinations for his back disability in January 2008 and January 2010. There is no objective evidence indicating that there has been a material change in the severity of his service-connected disorder since the Veteran was last examined. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since otherwise adequate VA examinations were conducted. See VAOPGCPREC 11-95. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that both VA examinations obtained in this case are more than adequate, as they were predicated on a review of the Veteran's medical records, an interview with the Veteran, and a discussion of his medical history and because the examinations fully address the rating criteria that is relevant to rating the disability in this case. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the increased rating issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required by 38 U.S.C.A. §§ 5103(a), 5103A and 38 C.F.R. § 3.159. II. Analysis Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The veteran's entire history is reviewed when making disability evaluations. See generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the Veteran's claim, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. Further, "[w]here 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 (2012). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use). See 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204 -07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In VA Fast Letter 06-25 (November 29, 2006), VA's Compensation and Pension Service noted that to properly evaluate any functional loss due to pain, examiners, at the very least, should undertake repetitive testing (to include at least three repetitions) of the joint's range of motion, if feasible. It was determined that such testing should yield sufficient information on any functional loss due to an orthopedic disability. On September 26, 2003, revisions to the VA rating schedule established a General Rating Formula for Diseases and Injuries of the Spine and a Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 68 Fed. Reg. 51454-51458 (August 27, 2003). Diagnostic Code 5243 indicates DDD of the lumbar spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in a higher evaluation when all disabilities are combined under § 4.25. Note 6 further provides that the thoracolumbar and cervical spine segments should be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The thoracolumbar segment of the spine includes the thoracic and lumbosacral spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent disability evaluation is contemplated when there is 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 is 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 evaluation 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 evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and 100 percent disability evaluation is contemplated when there is unfavorable ankylosis of the entire spine. Note 1 to this provision provides that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012). Further, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30, 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. Further, the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71(a), General Rating Formula for Diseases and Injuries of the Spine, Note (2), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent disability evaluation is contemplated for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a 60 percent rating is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). In the January 2008 rating decision, the RO granted service connection and assigned an initial 10 percent rating for the Veteran's DDD of the lumbar spine, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Veteran contends that his service-connected low back disability is more disabling than reflected by the assigned 10 percent rating. For the reasons that follow, the Board concludes that an increased disability rating is not warranted. Historically, the Veteran's service treatment records reflect that he was seen at the military clinic in March 1993 with complaints of low back pain. He was assessed with mechanical low back pain and treated with medication. At the January 1997 separation examination, the Veteran reported a history of recurrent back pain, and the clinical evaluation of his spine was shown to be abnormal. The Veteran was afforded a general VA examination in August 1997, at which time he described various musculoskeletal problems, to include problems with his low back region, which had reportedly been ongoing since 1978. According to the Veteran, his back pain was exacerbated with prolonged activity, standing or sitting. On physical examination, the Veteran had flexion to 100 degrees, extension to 10 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 40 degrees. It was noted that the Veteran's range of motion measurements stayed the same during both active and passive range of motion. On neurological evaluation, the Veteran was alert and oriented times three, and his motor strength was 5/5 in all muscle groups. The Veteran's deep tendon reflexes were 2/4 in every region, and his sensation to light touch, vibration, temperature and two point proprioception were found to be intact. The Veteran also underwent an x-ray of the lumbar spine, the results of which were negative for any abnormalities. VA treatment records dated in October 2004 and May 2007 reflect the Veteran's complaints of chronic pain in his back. The Veteran was afforded another VA examination in connection to his claim in January 2008, at which time, he provided his medical history and attributed his symptoms to his period of service - namely to participating in physical training exercises and fulfilling his duties as a mechanic, a job which required that he lift heavy pieces of equipment and work in unusual positions. The Veteran described the onset of pain in the lower back as slow and gradual, and noted that despite receiving conservative treatment throughout the years, his symptoms have slowly worsened since his military discharge. According to the Veteran, the pain is present at all times, and on a scale of one to ten (with one being the least level of pain and ten being the highest), his pain level is at a seven. The Veteran denied experiencing any incapacitating episodes which would require bed rest within the last twelve months. On physical examination, the Veteran had a normal gait, and was shown to have flexion to 75 degrees, extension to 10 degrees, lateral flexion to 20 degrees and rotation to 30 degrees. While he reported to have pain throughout each exercise, the examiner observed no evidence of additional loss of motion or pain upon repetitive motion. Further evaluation of the back was clear for any signs of spasms, and the examiner described the spine as nontender. According to the examiner, x-ray films of the lumbar spine revealed some sclerosis of the facet joints, decreased disk space height at L4-S1, and some signs of osteophytosis. Based on his evaluation of the Veteran, the VA examiner diagnosed the Veteran with DDD of the lumbar spine. The Veteran was afforded another VA examination in January 2010, at which time, he described daily pain that is present at all times, but tends to worsen throughout the day depending on what he is doing and how active he is. On a scale of one to ten, the Veteran rated his pain level at a seven, and noted that the pain radiates to his hips and lower extremities. While the Veteran reported to have occasional difficulty walking due to his back pain, he denied any incapacitating episodes requiring prescribed bed rest within the last twelve months. The Veteran also added that he did not use any form of assistive device, and his activities of daily living had not been affected as a result of his back disability. According to the Veteran, he experiences flare-ups of back pain once a month, which are brought on by activity and prolonged standing. On physical examination, the Veteran had a normal gait, and was shown to have flexion to 68 degrees, extension to 10 degrees, lateral flexion to 25 degrees bilaterally, and rotation to 30 degrees bilaterally. While he experienced pain with each exercise, the examiner did not observe any additional limitation of motion following repetitive use. The examiner did note that the Veteran's spine was mildly tender to palpation, but noted that this was not localized to any specific region. The examiner further observed no spasm on examination. X-rays of the lumbar spine revealed slight narrowing of the L4-L5 and L5-S1 disk space that was slightly more severe at L5-S1 with sclerosis of the facet joints. In considering the evidence of record under the General Rating Formula for Diseases and Injuries of the Spine, the Board concludes that the Veteran is not entitled to an initial evaluation in excess of 10 percent for his service-connected low back strain. As previously discussed, the August 1997, January 2008, and January 2010 VA examination reports reflect that the Veteran had flexion to 100 degrees, 75 degrees, and 68 degrees, respectively, with no additional limitation of movement upon repetitive movement. As such, his flexion has always been shown to be greater than 60 degrees throughout the appeal. Moreover, the combined range of motion of the thoracolumbar spine was greater than 120 degrees at each examination. In addition, the Veteran did not exhibit any muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. In this regard, the more recent VA examiner (who evaluated the Veteran in January 2008 and January 2010) noted that the Veteran's spine was clear for any signs of muscle spasm, and the Veteran's gait was described as normal at both examinations. The Board has also considered whether the Veteran is entitled to a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. As previously noted, the Veteran did not report experiencing any incapacitating episodes as a result of his back pain at his January 2008 and January 2010 VA examinations. Indeed, his medical records are devoid of any findings, notations or treatment for any episodes of incapacitation, and there are no medical records indicating his physician recommended or prescribed bed rest. Therefore, the medical evidence does not show that the Veteran has had incapacitating episodes with a total duration of at least two weeks, but less than four weeks, during the past twelve months, and a higher rating is not warranted under the criteria for intervertebral disc syndrome. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's service-connected spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 10 percent rating, and no higher. In this regard, the Board observes that the Veteran has complained of pain on numerous occasions. The Board also acknowledges the objective medical findings, which reflect the Veteran's complaints of pain when conducting his range of motion exercises. However, as previously noted, the VA examiner did not observe evidence of additional limitation of motion following repetitive movement. Indeed, the effect of the pain in the Veteran's lumbar spine is contemplated in the currently assigned 10 percent disability evaluation. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. Therefore, the Board concludes that an evaluation in excess of 10 percent for the Veteran's low back disability is not warranted. The Board recognizes the Veteran's statements attesting to his constant pain and limited range of motion. The Board notes that lay persons can attest to observable symptomatology. In addition, the Veteran's statements describing his symptoms are considered to be competent evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), Layno v. Brown, 6 Vet. App. 465, 469 (1994), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). These statements, however, must be viewed in conjunction with the objective medical evidence as required by the rating criteria. In this regard, the objective medical evidence, including all three examination reports, include the information necessary to rate the Veteran's disability in accordance with the rating criteria and both examiners considered the Veteran's reported symptomatology. Thus, when considering the overall evidence of record, including the Veteran's statements, the Veteran's disability does not warrant an initial disability rating in excess of 10 percent. In conclusion, the Board finds that Veteran's level of disability more closely approximates the criteria for a 10 percent disability rating and a higher disability rating is not warranted. The Board finds that the preponderance of the evidence is against the Veteran's claim for an initial disability rating in excess of 10 percent, and therefore the claim must be denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). With respect to any neurological complications, the Board notes that the Veteran has already been service-connected and separately rated for radiculopathy of his left lower extremity. The more recent medical records are clear for any complaints of numbness in the right lower extremity, and the objective medical evidence does not indicate that he suffers from a separate neurological disability in his right lower extremity as a result of his back disability. Indeed, findings from the January 2008 neurological examination showed straight leg raising to be negative bilaterally, and the Veteran's motor strength in the upper and lower extremities was 5/5 bilaterally. In addition, the Veteran's sensation to various stimuli was characterized as normal, and his deep tendon reflexes were 2+ and symmetric throughout. The Veteran was afforded a neurological evaluation in December 2009, at which time, the examiner observed no muscle atrophy, weakness or sensory impairment in the right lower extremity. At the January 2010 VA examination, the examiner noted that the straight leg raising test produced negative results bilaterally, and described the Veteran's sensation as normal, with normal, symmetric deep tendon reflexes. In addition, the Veteran's motor strength was 5/5 in all four extremities. Additionally, the Veteran has not reported to have any bowel or bladder symptomatology associated with his low back disability, and the medical evidence of record does not reflect any such pathology. Thus, a separate compensable rating for such symptoms is not warranted. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012) (which stipulates that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code). The above determinations are based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the Veteran's disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Board finds that the rating criteria used to evaluate his lumbar spine DDD reasonably describes the Veteran's disability level and symptomatology and he has not argued to the contrary. There is no indication that the Veteran's disability picture is so exceptional or unusual to render the schedular criteria inadequate. Consequently his disability level is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate. For these reasons, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER Entitlement to an initial disability rating in excess of 10 percent for DDD of the lumbar spine is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs