Citation Nr: 1320388	
Decision Date: 06/25/13    Archive Date: 07/05/13

DOCKET NO.  10-03 868	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to an initial disability evaluation for a thoracolumbar spine strain in excess of 10 percent prior to June 6, 2012, and 20 percent thereafter.


REPRESENTATION

Appellant represented by:	Teena Petro, Agent


ATTORNEY FOR THE BOARD

M. Sopko, Associate Counsel


INTRODUCTION

The Veteran had active military service from October 1967 to September 1968.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. 

The Veteran was granted service connection for his thoracolumbar spine strain in January 2009.  This disability was rated as 10 percent disabling.  In a December 2012 rating decision, the RO increased this rating to 20 percent disabling.
This increase during did not constitute a full grant of the benefit sought.  Therefore, the Veteran's claim for an increased evaluation for the service-connected thoracolumbar spine strain remains on appeal.  See AB v. Brown, 6 Vet. App. 35, 39 (1993).


	FINDINGS OF FACT	

1. The Veteran's thoracolumbar spine strain does not cause limitation of 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, there is not muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis prior to June 6, 2012.

2. The Veteran's thoracolumbar spine strain does not cause limitation of forward flexion to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine for the period June 6, 2012 to present.


CONCLUSION OF LAW

The criteria for an initial rating for a thoracolumbar spine disability in excess of 10 percent prior to June 6, 2012, and 20 percent thereafter have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.20, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5242 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. 
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

This appeal arises from disagreement with an initial evaluation following the grant of service connection. Once service connection is granted, the claim is substantiated and additional VCAA notice is not required; any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

Filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of prejudice with regard to the notice in this case, hence further VCAA notice is not required with regard to the initial rating appeal. 

For these reasons, VA has satisfied its duty to notify. 

The duty to assist provisions of the VCAA have also been met. The claims file contains service treatment records and VA compensation examination reports dated December 2008 and June 2012. 

The RO provided the Veteran with two VA examinations. The examinations were adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, and appropriate diagnostic tests. The claims file was reviewed by the examiner in the December 2008 examination, but not in the June 2012 examination.  However, because the critical inquiry focuses on the severity of the Veteran's disorder, which is readily ascertainable from the VA examination test results, the examination is sufficient to evaluate the claim. The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). 

Merits Analysis

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes (DC). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular DC, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 

The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. The Veteran is appealing an initial evaluation following an initial award of service connection for his thoracolumbar spine disability.  As such, evidence contemporaneous with the claim and the initial rating decision is most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If, as here, later evidence 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. Id. However, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).

Diagnostic Code 5242 references Diagnostic Code 5003. Under Diagnostic Code 5003 (degenerative arthritis), if the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a. However, here the Veteran has a compensable rating because of limitation of motion, so Diagnostic Code 5003 is inapplicable. As such, the Veteran is rated under the General Rating Formula for Diseases and Injuries of the Spine.

Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is 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, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The criteria for a 30 percent evaluation pertain only to the cervical spine and are therefore not applicable in this case. A 40 percent evaluation is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a.

When an evaluation of a disability is based upon limitation of motion, the Board must also consider additional functional loss sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).


Prior to June 6, 2012

The Veteran underwent a VA compensation examination in December 2008 for his thoracolumbar spine disability. The Veteran reported having pain and taking 4 Vicodin tablets daily to treat the symptoms. He also reported having a flare-up of pain when he bends and tries to lift, and he complained of increased pain when sitting for a prolonged time. The examiner noted there was pain on palpation over L1 and L2 with painful and limited range of motion.  The examiner also noted there was painful and limited flexion up to 75 degrees and extension up to 10 degrees.  Lateral bending to the left and right was 30 degrees and rotation to the left and right was 30 degrees.  There was no spasm of the paravertebral muscles.  His gait was normal without assistive devices.  After repetitive motion, the Veteran complained of increased pain, easy fatigability, lack of endurance, and decreasing of flexion and extension with 5 more degrees. Additionally, x-rays revealed degenerative changes of the thoracolumbar spine, and the Veteran was diagnosed with strain of the thoracolumbar spine and degenerative changes of the thoracolumbar spine.  

The RO granted service connection subsequent to this examination, rating the Veteran's thoracolumbar spine strain as 10 percent disabling.  

As noted above, a 20 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is 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, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  Here, the Veteran's forward flexion was measured at 75 degrees, which exceeds the 60 degree threshold for the next higher 20 percent evaluation. Moreover, his gait was normal.  While the December 2008 examination detailed pain, fatigability, and lack of motion, such symptoms do not rise to the level of the factors set forth in DeLuca.  In light of the foregoing, the preponderance of the evidence is against the claim, so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. The overall disability picture for the Veteran's back disability does not more closely approximate a 20 percent rating under the applicable Diagnostic Codes for the period prior to June 6, 2012. 38 C.F.R. § 4.7. 

	June 6, 2012 - Present	

The Veteran was afforded a second VA examination in June 2012 to evaluate his current level of disability. The Veteran was diagnosed with a compression fracture of T12, degenerative disc disease of the thoracolumbar spine, osteoarthritis of the thoracolumbar spine, and lumbar radiculopathy. The examiner noted that the Veteran's thoracolumbar range of motion was: flexion (40 degrees); extension (10 degrees); left lateral flexion (20 degrees); left lateral rotation (20 degrees); right lateral flexion (20 degrees), and right lateral rotation (30 degrees). The total range of motion was 140 degrees. The examiner found the Veteran did not have additional limitation in range of motion testing following repetitive-use testing.  The examiner also found the Veteran had functional loss and/or functional impairment of the thoracolumbar spine that manifested itself in less movement than normal, weakened movement, excess fatigability, pain on movement, and instability of station. The Veteran was also found to have guarding or muscle spasm of the thoracolumbar spine as abnormal gait.

The RO increased the Veteran's service-connected thoracolumbar spine strain disability rating to 20 percent disabling.

As noted above, a 40 percent evaluation is warranted when forward flexion of the spine is 30 degrees or less, or when there is favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. The Veteran's forward flexion was measured at 40 degrees in June 2012, thus exceeding the aforementioned 30 degree threshold. Additionally, the Veteran retained mobility in his thoracolumbar spine, and he did not manifest ankylosis of any form. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). While this examination detailed that the Veteran experienced pain and decreased mobility, such symptoms do not rise to the level of the factors set forth in DeLuca.  In light of the foregoing, the preponderance of the evidence is against the claim, and the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. The overall disability picture for the Veteran's back disability does not more closely approximate a 40 percent rating under the applicable Diagnostic Codes for the period June 6, 2012 to present. 38 C.F.R. § 4.7. 

Extraschedular Consideration

The Board has considered whether referral for an extraschedular rating is appropriate under the provisions of 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

As described above, the manifestations of the Veteran's back disability are contemplated by the schedular criteria. The rating criteria adequately describe his painful limitation of motion of the thoracolumbar spine. Further, no examiner has reported an exceptional disability picture with symptoms not represented in the rating schedule. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order.





ORDER

Entitlement to an initial disability evaluation for a thoracolumbar spine strain in excess of 10 percent prior to June 6, 2012, and 20 percent thereafter is denied.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs