Citation Nr: 1319945	
Decision Date: 06/20/13    Archive Date: 07/02/13

DOCKET NO.  10-48 760	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 10 percent for lumbar muscular strain with degenerative disc disease, prior to August 26, 2011.  

2.  Entitlement to an initial disability rating in excess of 20 percent for lumbar muscular strain with degenerative disc disease, from August 26, 2011.

3.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).
  

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J.M. Seay, Associate Counsel


INTRODUCTION

The Veteran served on active duty for training from April 2002 to June 2002 and had active service from October 2004 to April 2005, October 2007 to January 2008, and February 2008 to January 2009.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, wherein the RO granted service connection for lumbar muscular strain with degenerative disc disease and assigned an initial disability rating of 10 percent, effective January 24, 2009.  

In an August 2012 rating decision, the RO granted a 20 percent disability rating for lumbar muscular strain with degenerative disc disease effective August 26, 2011.  The Veteran continues to disagree with the ratings assigned.  The United States Court of Appeals for Veterans Claims (Court) has held that a "decision awarding a higher rating, but less than the maximum available benefit . . . does not . . . abrogate the pending appeal . . . ." AB v. Brown, 6 Vet. App. 35, 38 (1993).

In February 2012, the Board remanded the Veteran's claim for additional development.  The case has been returned to the Board for review.  

The Veteran testified at an August 2011 Travel Board hearing before a Veterans Law Judge (VLJ) who has since retired from the Board.  A transcript of the hearing is in the claims file.  In January 2013, the Board sent a letter to the Veteran informing him that the VLJ before whom he had testified in August 2011 had retired and advised him that he had the right to a new hearing before another VLJ who would decide his case.  In a February 2013 response, the Veteran indicated that he did not desire an additional hearing before the Board.

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that VA must address the issue of entitlement to a TDIU in increased rating claims when the issue of unemployability is raised by the record.  Here, the Veteran stated that he had to quit his job due to his back pain.  Therefore, the Board finds that the issue of entitlement to a TDIU has been raised.  Under Rice, the Board has jurisdiction over the TDIU claim and appropriately listed the issue on the title page.

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Prior to April 27, 2009, the Veteran's lumbar muscular strain with degenerative disc disease was manifested by complaints of pain, flare-ups, flexion limited to no less than 90 degrees, and combined range of motion findings of greater than 120 degrees, even with consideration of pain on use or repetitive use, but did not manifest in guarding or muscle spasm severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or, incapacitating episodes requiring physician prescribed bed rest.   

2.  Effective April 27, 2009, the Veteran's lumbar muscular strain with degenerative disc disease has manifested by complaints of pain, flare-ups, and guarding and/or spasm that has manifested in an antalgic gait, and functional loss consisting of less movement than normal, excess fatigability, pain on movement, and interference with sitting, standing, and/or weight bearing, but has not manifested by functional impairment comparable to flexion limited to 30 degrees or less, or ankylosis of the thoracolumbar spine, even with consideration of pain on use or repetitive use, or incapacitating episodes requiring physician prescribed bed rest.


CONCLUSIONS OF LAW

1.  Prior to April 27, 2009, the criteria for an initial disability rating in excess of 10 percent for lumbar muscular strain with degenerative disc disease have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2012).

2.  Effective April 27, 2009, the criteria for a 20 percent staged initial disability rating, but no higher, for lumbar muscular strain with degenerative disc disease, have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a) (2012), VA has a duty to notify a claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant, and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

Duty to Notify

The appeal for a higher initial disability rating for the service-connected lumbar muscular strain with degenerative disc disease arises from a disagreement with the initial evaluation following the grant of service connection.  In this regard, because the August 2009 rating decision granted the veteran's claim of entitlement to service connection, such claim is now substantiated.  His filing of a notice of disagreement as to the initial rating assigned in the August 2009 determination does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a).  38 C.F.R. § 3.159(b)(3) (2012).  Rather, the veteran's appeal as to the initial rating assignment here triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103.  Under 38 U.S.C.A. § 7105(d), upon receipt of a notice of disagreement in response to a decision on a claim, the agency of original jurisdiction must take development or review action it deems proper under applicable regulations and issue a statement of the case if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the notice of disagreement.  If VA receives a notice of disagreement in response to notice of its decision on a claim that raises a new issue, section 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved; however, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue.  See VAOPGCPREC 8-03 (December 22, 2003); 69 Fed. Reg. 25180 (2004); 38 C.F.R. § 3.159(b)(3) (2012).  

As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law.  This has been accomplished here.  The statement of the case (SOC), under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic code (DC) for rating the disability at issue, and included a description of the rating formulas for all possible schedular ratings under this diagnostic code.  The appellant was thus informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the initial evaluation that the RO assigned.  Therefore, the Board finds that the appellant has been informed of what was necessary to achieve a higher rating for the service-connected disability at issue.

Duty to Asssist

The Veteran's service treatment records and identified VA medical treatment records have been obtained.  The Veteran was provided examinations in March 2009 and March 2012.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012).  The Board notes that the March 2009 VA examination report does not include repetitive range of motion testing or an explanation of any functional loss.  However, the examination contains findings that are sufficient to adjudicate the appropriate rating prior to August 26, 2011.  A remand for further development in this regard would serve no useful purpose as such would not produce clinical findings pertaining to historical disability status.  A remand is inappropriate where there is no possibility of any benefit flowing to the veteran.  Soyini v. Derwinski, 1 Vet. App. 540 (1991).  The March 2012 VA examination included repetitive range of motion testing, an explanation of the Veteran's functional loss, and addressed the current severity of the Veteran's lumbar muscular strain with degenerative disc disease relevant to the applicable VA rating criteria.  38 C.F.R. § 3.159(c)(4) (2012); Barr v Nicholson, 21 Vet. App. 303 (2007).  The Board notes that the March 2012 VA examiner did not have access to the claims file; however, the VA examiner took a detailed history of the Veteran's disability, consistent with that contained in the Veteran's claims folder, including the Veteran's reported symptoms, and provided the findings necessary to evaluate the Veteran's disability.  In addition, another VA examiner provided an addendum to the examination report, dated in April 2012, and explained that the claims file was reviewed and the examiner agreed with the findings in the March 2012 VA examination report.  Therefore, the Board finds the examinations to be sufficient and adequate for rating purposes, and that the March 2012 VA examination report with the April 2012 addendum, comply with the February 2012 remand directives.  Stegall v. West, 11 Vet. App. 268 (1998). 

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the Board personal hearing, the Veteran was assisted at the hearing by an accredited representative from the Veterans of Foreign Wars of the United States.  The representative and the VLJ asked questions to ascertain the nature and severity of the Veteran's service-connected lumbar muscular strain with degenerative disc disease.  The VLJ solicited information on the availability of any additional relevant evidence for development, to include relative to ongoing treatment.  No additional pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative.  Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

There is no indication in the record that any additional evidence relevant to the issue on appeal is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486.

All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed).  The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter on appeal.  The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).

Initial Rating

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012).  Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2012); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).

The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability.  Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply.  Fenderson v. West, 12 Vet. App. 119 (1999).  Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports.  Id. 

Throughout the rating period on appeal, the Veteran's disability has been rated under Diagnostic Code 5010-5242 under the General Rating Formula for Diseases and Injuries of the Spine.  The hyphenated diagnostic code in this case indicates that traumatic arthritis, rated under Diagnostic Code 5010, is the service-connected disorder and that the rating is determined on the basis of limitation of motion, the residual condition, under Diagnostic Code 5242 for rating degenerative arthritis.  The General Rating Formula for Diseases and Injuries of the Spine provides for disability ratings under Diagnostic Codes 5235 to 5243, unless the disability rated under Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, for diseases and injuries of the spine, 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 rating formula for diseases and injuries of the spine, ratings related to the thoracolumbar spine are assigned as follows: 

A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.

A 20 percent rating is warranted for 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 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 rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.

A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.

A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a.

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.

Note (2): (See also Plate V.)  For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  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.  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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4): Round each range of motion measurement to the nearest five degrees.

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire 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.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either 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 the higher evaluation when all disabilities are combined.  See 38 C.F.R. § 4.25 (combined ratings table).

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrants a 20 percent rating.  A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements.  In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities.  38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint.  38 C.F.R. § 4.59.

In the August 2009 rating decision on appeal, the RO granted service connection for lumbar muscular strain with degenerative disc disease and assigned an initial disability rating of 10 percent, effective January 24, 2009.  In a subsequent rating decision dated in August 2012, the RO granted a staged higher initial disability rating of 20 percent, effective August 26, 2011.  

The Veteran was provided a VA examination in March 2009.  He stated that he had discomfort which was described as a sharp pain across his belt line with occasional radiation.  There was occasional radiation down his left lower extremity lateral to his lateral ankle.  He denied any spasm.  He denied any numbness or tingling.  He denied any bowel or bladder incontinence, foot drop, or saddle anesthesia.  He stated that he had discomfort about every other day.  The flare occurred as a radicular pain down his left leg.  He stated that this occurred with excessive driving or repetitive bending and stooping.  He stated that he will rest for 10 to 15 minutes and discomfort will resolve.  He did not take any medication for this.  He denied any work restrictions.  He denied using a back brace or corrective device.  He stated it affected his daily activities and that he sat and relaxed more.  He did not weight lift and did not participate in sports.  He denied any incapacitating events whatsoever.  He stated that on repetitive bending and stooping his discomfort increased and he would stop the afflicting event.  He stated that when he has a flare, he will stop lifting, stooping, and bending until the flare resolves.  On examination, there was no vertebral tenderness and no gross misalignment of the spine.  There was minimal tenderness in the paraspinal area, muscle areas on the left and right.  There was no spasm noted.  Range of motion showed a normal flexion to 90 degrees, posterior flexion to 20 degrees, extension to 30 degrees, left lateral flexion to 30 degrees, right lateral flexion to 30 degrees, left lateral rotation to 20 degrees, and right lateral rotation to 30 degrees.  There was discomfort through all range of motion in the bilateral paraspinal muscles in the lower lumbar area.  He could heel and toe raise without difficulty.  There was negative straight leg raising bilaterally.  The assessment was listed as lumbar muscular strain and lumbar degenerative disc disease.  It was noted that the Veteran had a normal gait.  

An April 27, 2009 VA treatment record noted that the Veteran stated that his pain was aggravated by driving or riding in his truck and prolonged walking.  He stated that he drove a truck for a living 10 to 12 hours per day.  The pain goes from his back all the way down his left leg.  The range of motion was within full limits for bilateral lower extremities and trunk motions.  Strength was within full limits for bilateral lower extremities and 4/5 for trunk motions.  The Veteran was ambulating independently with antalgic gait on left lower extremity.  He had minimal forward head, rounded shoulders, and decreased lumbar lordosis.  On palpation, there was moderate tenderness over the bilateral S-I joint and moderate tightness and tenderness was present over bilateral lumbar paraspinals and piriformis muscles.  

A July 2009 VA treatment record shows that the Veteran reported that his back pain had gotten worse because he had to do more unloading at work.  Objectively, his S-I joint was out of place.  The trunk and bilateral lower extremities ranges of motion were within full limits with pain at end ranges.  He remained moderately tender to palpation over bilateral lumbar paraspinals and bilateral S-I joint.  

A May 2010 VA treatment record noted that the Veteran's gait was normal and there was normal curvature of the back.  There was some paravertebral muscular spasm and the lumbar paravertebral region was tender to palpation.  Tenderness was also noted in QL and gluteus and pyriformis musculature.  There was good range of motion with some noted pain on extreme flexion.  The posterior superior iliac spine (PSIS) appeared relatively equal heights and remained equal with flexion.  The June 2010 VA treatment record noted that there was no evidence of antalgia.  The September 2010 VA treatment record noted that there was normal flexion of the back with mild tenderness to palpation of left S-I.  

An August 2011 VA treatment record shows that the Veteran was fitted with a cane due to an unstable gait.  A February 2011 VA treatment record shows that the Veteran's range of motion of the spine was normal without pain, crepitation, or contracture.  There was no spasticity, atrophy, or abnormal movements noted.  There was pain to palpation at L4-5 and L5-S1.  The February 2011 VA treatment record also shows that the Veteran reported pain that occasionally radiated in an S1 distribution on the left.  He was being treated with muscle relaxants and underwent S-I joint injections, acupuncture, and physical therapy.  

The Veteran was provided a VA examination in March 2012.  The examiner noted that the claims file was not available for review.  The VA Computerized Patient Record System (CPRS) was reviewed and the examiner took a history from the Veteran.  It was noted that the Veteran stayed working as an over-the-road truck driver until June 2010 when he had to quit due to his back pain during loading and unloading the truck.  He underwent a Left S-I 15% Dextrose prolotherapy on January 6, 2010, a lumbar trigger point cocktail injection on May 18, 2010, L3-L5 and Priformis electro-accupuncture on February 18, 2011, transforaminal left L-5 epidural on June 7, 2011, and transforaminal left L-5 epidural on August 2, 2011.  The Veteran reported that he experienced flare-ups.  He stated that he will mis-step in the morning getting out of bed and his back will go out.  It can also go out when he tries to lift something heavy.  This is usually accompanied by a dull pain.  He can also feel his pain if he spends too much time walking on concrete when his wife shops at Walmart.  His acute flare pain usually lasts for a day and resolves overnight with bed rest.  

On examination, the Veteran's forward flexion was 45 degrees with painful motion beginning at 35 degrees.  Extension was 15 degrees with painful motion beginning at 10 degrees.  Right lateral flexion was 25 degrees with no evidence of painful motion.  Left lateral flexion was 25 degrees with no objective evidence of painful motion.  Right lateral rotation was 15 degrees with no objective evidence of painful motion.  Left lateral rotation was 15 degrees with no objective evidence of painful motion.  The Veteran was able to perform repetitive-use testing.  Post-test forward flexion ended at 35 degrees, post-test extension ended at 10 degrees, post-test right lateral flexion ended at 25 degrees, post-test left lateral flexion ended at 25 degrees, post-test right lateral rotation ended at 15 degrees, and post-test left lateral rotation ended at 15 degrees.  The examiner indicated that the Veteran had additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing and that he had functional loss and/or functional impairment of the thoracolumbar spine.  The contributing factors were noted as less movement than normal, excess fatigability, pain on movement, and interference with sitting, standing, and/or weight bearing.  The Veteran had maximal tenderness of left S-I joint and left Piriformis muscle and left lumbar paraspinals.  There was also mild tenderness at L-5/S-1.  The Veteran had guarding or muscle spasm of the thoracolumbar spine that resulted in an abnormal gait.  The examiner noted that the Veteran did not have intervertebral disc syndrome.  The Veteran regularly uses a cane as an assistive device.  The Veteran used a single point cane in the right hand to offload left lower extremity and left S-I joint.  The August 2011 magnetic resonance imaging (MRI) findings showed degenerative disc disease with multilevel degenerative joint disease.  The examiner stated that the disability impacts his ability to work.  The examiner explained that the Veteran should not engage in physical labor that involves bending/lifting, twisting, or carrying heavy loads over 10 pounds.  He also should not work standing or walking for long periods without sitting or lying breaks.  He may work in a sedentary setting but will have to change positions frequently and may benefit from a (Swedish) kneeling chair to offload his S-I joints in slight flexion.  The examiner noted that the Veteran has lumbar spine L-5/S-1 and L-4/5 degenerative disc disease with multilevel facet degenerative joint disease.  This was proximal to and adversely affected by his bilateral sacro-iliac joint dysfunction.  His right antalgic gait on examination and sitting posture offloading his left buttocks are classic for S-I joint dysfunction.  

In reviewing the evidence of record, as will be explained in greater detail below, the Board finds that the Veteran's lumbar muscular strain with degenerative disc disease warrants an initial disability rating of 20 percent, effective April 27, 2009.  

However, prior to April 27, 2009, the Board finds that the Veteran's lumbar muscular strain with degenerative disc disease does not warrant an initial disability rating in excess of 10 percent.  

To warrant a higher disability rating of 20 percent, the evidence must show 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 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.  38 C.F.R. § 4.71a. 

Prior to April 27, 2009, the evidence does not reveal findings of flexion limited to 60 degrees or less, combined range of motion of 120 degrees or less; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  The March 2009 VA examination report shows that the Veteran was able to flex his spine to normal flexion of 90 degrees and the range of motion findings were greater than 120 degrees.  There was no spasm noted on examination and there was no gross misalignment of the spine.  The examiner indicated that the Veteran had a normal gait.  Therefore, prior to April 27, 2009, the Veteran's disability does not meet the criteria for an initial disability rating in excess of 10 percent.

Furthermore, the evidence does not reveal findings of ankylosis or incapacitating episodes to warrant a higher disability rating.  Indeed, the March 2009 VA examination report shows that the Veteran denied experiencing incapacitating episodes.  The examination report also showed that the Veteran was able to flex his spine to 90 degrees and the report does not reflect any findings of ankylosis.  Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure.  Lewis v. Derwinski, 3 Vet. App. 259 (1992).  

The Board considered functional loss in accordance with VA regulations and Deluca.  38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes that the March 2009 VA examination report did not include repetitive range of motion findings or notations related to functional loss.  However, at the time, the Veteran only complained of pain.  He also reported that he had flares every other day, but they consisted of pain down his left leg.  He also reported that he did not weight lift or participate in sports.  Finally, it was noted that there was discomfort through the entire range of motion during the March 2009 examination.  However, the Veteran was still able to flex his spine to 90 degrees- which is normal range of motion for flexion.  Given the evidence of record, the Board finds that the Veteran's pain and any functional loss are encompassed by the 10 percent disability rating.  Therefore, an initial rating in excess of 10 percent is not warranted.  38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, id.

Prior to April 27, 2009, the preponderance of the evidence is against the claim for an initial disability rating in excess of 10 percent for the service-connected lumbar spine disability.  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 (1990).

Next, the Board finds that the Veteran's lumbar muscular strain with degenerative disc disease meets the criteria for a 20 percent disability rating effective April 27, 2009.  As noted above, the RO granted the higher disability rating of 20 percent, effective August 26, 2011, which showed that the Veteran was issued a cane for his unstable gait as the March 2012 VA examiner indicated that the Veteran had an altered gait due to guarding and/or muscle spasm.  However, the Board notes that the first objective evidence of an antalgic gait is noted in the April 27, 2009 VA treatment record.  In resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran's disability warrants a 20 percent staged initial disability rating effective April 27, 2009, the first objective evidence demonstrating an altered gait.  38 U.S.C.A. § 5107(b).    

However, the evidence does not reveal findings of ankylosis or flexion limited to 30 degrees or less to warrant an initial disability rating in excess of 20 percent.  The February 2011 VA treatment record shows that the range of motion of the spine was normal.  The March 2012 VA examination report shows that the Veteran flexed to 45 degrees with pain beginning at 35 degrees.  There were no findings of ankylosis.  Thus, an initial disability rating in excess of 20 percent from April 27, 2009, is not warranted.  

The Board has considered functional loss in accordance with VA regulations and DeLuca.  38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Veteran has reported that he experiences flare-ups and pain.  The July 2011 VA treatment record noted that the Veteran can only walk short distances due to his back and the March 2012 VA examiner noted that the Veteran could only flex to 35 degrees after repetitive range of motion testing.  Nevertheless, the Board finds that the Veteran's 20 percent disability rating encompasses the Veteran's pain and functional loss.  Although the Veteran has functional loss, he was still able to flex his spine to 35 degrees after repetitive testing.  Therefore, the Board finds that an initial rating in excess of 20 percent is not warranted.  38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, id.

The Board has considered whether a higher disability rating could be assigned under Diagnostic Code 5243, intervertebral disc syndrome.  However, the March 2012 VA examiner indicated that the Veteran does not have a diagnosis of intervertebral disc syndrome.  Accordingly, an initial disability rating in excess of 20 percent is not warranted under Diagnostic Code 5243.

The Board has also considered the Veteran's statements that his disability warrants a higher disability rating.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  The medical evidence includes the Veteran's reported symptoms and provided findings with respect to his disability in accordance with the rating criteria.   Although the Veteran may feel that he is entitled to a higher rating, and is competent to report his symptoms, he has not been shown to have the medical or legal training necessary to render him competent to ascribe his symptoms to meeting specific diagnostic code criteria.  The Board finds that the reported symptoms and medical evidence are more akin to an initial disability rating of 10 percent prior to April 27, 2009 and a 20 percent staged initial disability rating, but no higher, from April 27, 2009.  

In conclusion, the Board finds that Veteran's level of disability more closely approximates the criteria for an initial 20 percent disability rating from April 27, 2009, and a higher initial disability rating is not warranted.  A preponderance of the evidence is against the assignment of an initial disability rating in excess of 20 percent for service-connected lumbar strain and the claim must be denied.   38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Finally, the Board notes that the Veteran has a neurological disability related to his service-connected disability.  In an August 2012 rating decision, the RO granted service connection for right lumbar radiculopathy with a 10 percent disability rating, effective August 26, 2011 and granted service connection for left lumbar radiculopathy, effective August 26, 2011.  The Veteran has not appealed this decision and, therefore, these issues are not before the Board at this time.  

Extraschedular Consideration

An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation.  38 C.F.R. § 3.321(b) (1) (2012).  Otherwise, the schedular evaluation is adequate, and referral is not required.  Thun, 22 Vet. App. at 116.

The schedular ratings assigned for the Veteran's service-connected lumbar muscular strain with degenerative disc disease are adequate.  As noted above, the Veteran was assigned a 10 percent disability rating prior to April 27, 2009 and assigned a 20 percent disability rating, effective April 27, 2009.  Ratings in excess of those assigned are provided for certain manifestations of the service-connected disability, but the medical evidence reflects that those symptoms are not present.  The diagnostic criteria also adequately describe the severity and symptomatology of the Veteran's disability.  The evidence does not reflect an exception or unusual disability with respect to the Veteran's lumbar muscular strain with degenerative disc disease.  The symptoms and findings are taken into account by the assigned disability ratings under the diagnostic criteria.  Therefore, as the first element has not been met, referral to the Director of Compensation and Pension Service pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted.


ORDER

Prior to April 27, 2009, entitlement to an initial disability in excess of 10 percent for lumbar muscular strain with degenerative disc disease is denied.

Effective April 27, 2009, entitlement to a staged initial disability rating of 20 percent, but no higher, for lumbar muscular strain with degenerative disc disease is granted, subject to subject to controlling regulations applicable to the payment of monetary benefits.

	(CONTINUED ON NEXT PAGE)


REMAND

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part and parcel of an increased-rating claim when raised by the record.  The Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU rating in this circumstance when the TDIU issue is raised by assertion or reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue.  See VAOPGCPREC 6-96 (Aug. 16, 1996).  See also Caffrey v. Brown, 6 Vet. App. 377, 382 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

The Veteran has indicated that he had to quit his last job due to his back pain, for which he is service-connected.  The issue of entitlement to a TDIU has not been adjudicated and the Veteran has not been provided a VA examination as to whether he is able to secure or follow a substantially gainful occupation due solely to service-connected disabilities.  Therefore, the Board finds that a remand for such development is required.

Accordingly, the case is REMANDED for the following action:

1.  Send the Veteran a notification letter and application for entitlement to a TDIU.  

2.  After undertaking any development indicated in light of the above, schedule the Veteran for a VA examination to determine the impact that all of his service-connected disabilities, in combination, have on his employability.  All pertinent symptomatology and findings must be reported in detail.  All indicated diagnostic tests and studies must be accomplished.  The claims file must be made available for review and the examiner's report should reflect that such review occurred.  The examiner must elicit from the Veteran and record, for clinical purposes, a full work and educational history.  

Based on a review of the claims file and examination of the Veteran, the examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities, considered in combination, render the Veteran unable to secure or follow substantially gainful employment consistent with his education and occupational experience, irrespective of age and any nonservice-connected disorders.

A complete rationale should be provided for any opinion reached.  

3.  Thereafter, adjudicate the issue of entitlement to TDIU.   If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond.  The case should then be returned to the Board, as warranted.


The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate 

action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
U.R. POWELL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs