Citation Nr: 1319806 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 08-33 912A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for chronic back strain, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from May 1953 to May 1957. This matter comes to the Board of Veterans' Appeals (Board) on appeal from decisions by the RO in Columbia, South Carolina. This case was remanded by the Board in September 2010 and October 2012 for further development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Chronic back strain is not manifested by unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for a rating higher than 40 percent disabling for chronic back strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA notify the appellant of the information and evidence needed to substantiate and complete his claims, and of what part of that evidence he is to provide and what part VA would attempt to obtain for him. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the Veteran with the notice required under VCAA by letters dated in August 2007. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In connection with the current appeal, available service and post-service treatment records have been obtained. The Veteran has also been afforded adequate VA examinations as they reflect a pertinent medical history, review of the documented medical history, clinical findings, a diagnosis, and an opinion. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. ANALYSIS Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, 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. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds that the Veteran's disability has not significantly changed and that uniform rating is warranted. The Veteran appeals the denial of a rating higher than 40 percent disabling for chronic lumbar strain. The Veteran's disability is rated under Diagnostic Code 5237. Pursuant to the Diagnostic Code 5237, a 40 percent rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. In July 2007, the Veteran expressed that his service connected lumbar spine disability had worsened in severity. He was seen in the emergency room in July 2007 for back pain. In August 2007 VA examination, the Veteran reported back pain once a week with three or four days going into his bilateral hips and legs with weakness. For relief, he used a cane, medication and/or a wheelchair. There was no physician prescribed bedrest. He was unable to have sexual relations, lift more than 15 pounds, stand more than three minutes and/or walk more than 25 feet. He was able to ambulate with a slow and hesitant gait. Examination revealed normal curvature and no spasm. There was tenderness in the right sciatic notch region. Right and left lateral bending was 0 to 25 degrees, extension 0 to 10 degrees, right rotation 0 to 30 degrees, left rotation 0 to 50 degrees and flexion 0 to 25 degrees. There was pain at the extreme with all ranges of motion but no additional limitation by pain, fatigue, weakness, or lack of endurance following repetitive use. The bilateral extremities had 5/5 motor strength throughout. Straight leg raising bilaterally was positive, and sensation normal. There was no evidence of atrophy. X rays revealed mild facet osteoarthritis at L5-S1. The Veteran was afforded another VA examination in June 2009. During this examination, the Veteran reported a history of back pain since 1953. He continued to use a back brace, walker and wheelchair for ambulation. He reported constant back pain that radiates down the bilateral legs just above the knee going down the posterior thigh. He also reported numbness and weakness in both legs with pain. He denied problems with incontinence but it was noted that he could not achieve an erection. He had no physician prescribed bedrest within the last year. The Veteran was unemployed and last worked fulltime in security and police work. It was noted that he "went out" because of his back problems. Examination revealed right and left lateral bending was 0 to 20 degrees with pain at 20 degrees, extension 0 to 10 degrees with pain at 10 degrees, right and left lateral rotation 0 to 20 degrees with pain at 20 degrees and forward flex 0 to 25 degrees with pain at 25 degrees. There were no additional limitations due to pain, fatigue, weakness, or lack of endurance following repetitive use. Examination of the lower extremities revealed strength was 4/5 and sensation was normal. No atrophy was noted in the muscles. Reflexes in the knees were 1+ and ankles 2+. He had positive straight leg raising bilaterally. Lumbar spondylosis and sacroiliac joint sclerosis with bilateral lower extremity radiculopathy, moderately severe was diagnosed. The VA examiner opined that the bilateral lower extremity radiculopathy is as likely as not 50/50 probability related to the lumbar spine spondylosis condition. He further opined that it is less likely than not 50/50 probability that his current lumbar spine mild spondylosis, SI joint sclerosis and bilateral lower extremities radiculopathy is related to service. In August 2009, the VA examiner issued an addendum opinion. He expressed that the claims file was not available to him during the June 2009 VA examination but he has since reviewed it. The VA examiner opined it is less likely than not, 50/50 probability, that the Veteran's back pain is related to service and more likely than not, 50/50 probability, related to age. The Veteran reported back pain since 1953 during the June 2011 VA examination. He described the pain as constant with radiation down to the bilateral legs. He also reported numbness and weakness in both legs with pain. He denied incontinence. He had no physician prescribed bedrest in the last year. Examination revealed strength in the lower extremities 4/5 bilaterally, decreased sensation to light touch for the upper and lower extremities bilaterally, and reflexes 2+ at the knees and ankles. There was no calf tenderness to palpation or atrophy. Range of motion testing revealed forward flexion to 20 degrees and extension to 5 degrees with pain. There was no decrease with repetitive movement. The examiner stated that range of motion was severely limited in that the Veteran had to do all range of motion testing in a wheelchair. The joints had no additional limitation by pain, fatigue, weakness or lack of endurance following repetitive movement. The Veteran was afforded another VA examination in January 2013. It was noted that he had not worked in 53 years. Range of motion testing revealed flexion to20 degrees with pain at 10 degrees and extension to 5 degrees with pain. There was no additional limitation in range of motion following repetitive testing. His functional loss included less movement than normal, pain on movement and interference with sitting, standing and/or weight bearing. There was decreased sensation to light touch for the lower leg/ankle and foot/toes. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. It was found that he also did not have any other neurologic abnormalities or findings related to the thoracolumbar spine such as bowel or bladder problems/pathologic reflexes. It was also noted that the Veteran's back disability did not impact his ability to work as he stopped working in 1960 due to another disability. The VA examiner further stated that the Veteran does not have ankylosis of his vertebral spine but that he had limited motion of his back due to poor muscle conditioning. According to the examiner, the Veteran's low back disability did not cause any neurological manifestations. Based on the evidence presented, the Board finds that a rating higher than 40 percent disabling is not warranted. In this regard, although the Veteran's lumbar spine disability limits his motion, unfavorable ankylosis of the entire thoracolumbar spine is not shown. At most, the evidence reveals flexion limited to 10 degrees and extension limited to 5 degree with pain. These findings do not meet the criteria for the next higher evaluation as there is no showing of unfavorable ankylosis of the entire thoracolumbar spine. The Board acknowledges the Veteran's assertions that his disability is more severe than evaluated to include his reports of pain and functional limitations. The Board finds that he is competent to report his symptoms and has presented credible testimony. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also accepts that he has functional impairment. See DeLuca. Neither the lay nor medical evidence, however, reflects the functional equivalent of ankylosis of the entire thoracolumbar spine required to warrant a higher evaluation. All lay and medical evidence of record demonstrates that a 40 percent rating and no more is for application. The Board has also considered whether the Veteran's service-connected lumbar spine disability would warrant a higher rating if rated on the basis of incapacitating episodes. However, incapacitating episodes are not shown by the record. In light of the lack of evidence demonstrating any episodes requiring bed rest prescribed by a physician and treatment by a physician for IVDS, and indeed, in light of the lack any assertion on the part of the Veteran that the criteria for incapacitating episodes have been met, the Board finds that a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes is not warranted. With regard to neurologic abnormalities, the General Rating Formula directs that neurological manifestations should be rated separately from orthopedic manifestations. The Veteran has not complained of and the evidence does not support findings of bowel or bladder disorders associated with his low back disability. Also, while he has been diagnosed with erectile dysfunction, such has not been attributed to his lumbar spine disability. The Board acknowledges, however, that the Veteran has reported numbness, weakness and tingling of the legs, and that the June 2009 VA examiner diagnosed lumbar spondylosis and sacroiliac joint sclerosis with bilateral lower extremity radiculopathy, moderately severe. In contrast, when examined in January 2013 the VA examiner found that the Veteran's low back disability did not cause any neurological manifestations. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. The Board has afforded greater probative value to the findings of the January 2013 VA examiner regarding whether the Veteran has any neurological abnormalities associated with his lumbar spine disability. The examiner found none. The probative value of medical evidence is based on the medical expert's personal observation of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 471 (1993). It is not error for the BVA to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases. Owens v. Brown, 7 Vet. App. 429 (1995). The Board notes that the June 2009 diagnosis was rendered by a nurse practitioner while the January 2013 findings of no abnormalities were rendered by a physician. It is also noted that examinations before and after June 2009 failed to disclose radiculopathy. The Board finds that the June 2009 findings are not supported by the evidence but, rather, are an anomaly. The January 2013 findings, however, are supported by the historical record and were rendered by an examiner of greater skill. The Veteran is competent to report symptoms, such as numbness and tingling, the objective findings however show he does not have radicular pain or any other signs or symptoms due to radiculopathy. The Board concludes that the findings of skilled professionals are more probative than the Veteran's lay statements and a separate compensable evaluation for neurological abnormalities associated with the lumbar spine is not warranted. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In reaching this determination, the Board has considered the guidance established in section 4.120, 4.123 and 4.124. However, when rated by analogy, a separate compensable evaluation is not warranted. An inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) also has been considered. The evidence shows that the Veteran has not worked in 53 years. The objective and subjective evidence, however, does not demonstrate that the Veteran is unemployable as a result of his disability. Therefore, any inferred TDIU claim is inapplicable in this case. The Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). There are no exceptional or unusual factors with regard to the Veteran's disability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.") Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign a higher disability rating for his disability. As the preponderance of the evidence is against the claim for a higher rating, the "benefit-of- the-doubt" rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990). ORDER A rating higher than 40 percent disabling for chronic lumbar strain is denied. ____________________________________________ REBECCA FEINBERG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs