Citation Nr: 1320516	
Decision Date: 06/26/13    Archive Date: 07/05/13

DOCKET NO.  09-48 797	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Denver, Colorado


THE ISSUES

1.  Entitlement to service connection for tuberculosis and/or a positive purified protein derivative test (PPD).

2.  Entitlement to a compensable initial disability rating for right knee patellofemoral syndrome.

3.  Entitlement to a compensable initial disability rating for left knee patellofemoral syndrome.

4.  Entitlement to a compensable initial disability rating prior to June 7, 2008 and a disability rating in excess of 10 percent as of June 7, 2008 for lumbar spine strain.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

B. Berry, Counsel


INTRODUCTION

The Veteran served on active duty from August 1999 to September 2007.

These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in January 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

The Veteran noted in the November 2009 substantive appeal that he wanted a travel Board hearing.  However, he submitted a form in January 2010 indicating that he no longer wanted a hearing.  Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and will adjudicate the case based on the evidence of record.  See 38 C.F.R. § 20.704 (2012).


FINDINGS OF FACT

1.  The preponderance of the shows that the Veteran does not have a current diagnosis of tuberculosis or disabling residuals thereof.

2.  The preponderance of the evidence reveals that the Veteran's right knee had a range of motion from zero to 130 degrees, at the worst, including consideration of pain on repetitive motion with no evidence of limitation of extension, arthritis, ankylosis, instability, subluxation, dislocated semilunar cartilage, removal of semilunar cartilage or impairment of the tibia and fibula.

3.  The preponderance of the evidence shows that the Veteran's left knee had a range of motion from zero to 130 degrees, at the worst, including consideration of pain on repetitive motion with no evidence of limitation of extension, arthritis, ankylosis, instability, subluxation, dislocated semilunar cartilage, removal of semilunar cartilage or impairment of the tibia and fibula.

4.  The preponderance of the evidence reveals that prior to June 7, 2008, the Veteran's service-connected lumbar spine strain was manifested by flexion greater than 85 degrees and a combined range of motion of the thoracolumbar spine greater than 235 degrees with consideration of pain and repetitive use and no evidence of muscle spasm, guarding, localized tenderness, abnormal gait, abnormal spinal contour, ankylosis or intervertebral disc syndrome.  

5.  The evidence of record reveals that as of June 7, 2008, the Veteran's service-connected lumbar spine strain was manifested by flexion greater than 60 degrees and a combined range of motion of the thoracolumbar spine greater than 120 degrees with consideration of limitation of motion due to pain and on repetitive use and no evidence of abnormal gait, abnormal spinal contour, ankylosis or intervertebral disc syndrome.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for tuberculosis and/or a positive PPD test have not been met.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

2.  The criteria for an initial compensable disability rating for the Veteran's service-connected right knee patellofemoral syndrome have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes5003, 5010, 5014, 5256-5262 (2012).  

3.  The criteria for an initial compensable disability rating for the Veteran's service-connected left knee patellofemoral syndrome have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes5003, 5010, 5014, 5256-5262 (2012).  

4.  The criteria for an initial compensable disability rating prior to June 7, 2008 and a disability rating in excess of 10 percent as of June 7, 2008 for lumbar spine strain have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Notice and Assistance

The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on the United States Department of Veterans Affairs (VA) to notify and assist a claimant in developing a claim.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 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 claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

With regard to claims for service connection for a disability, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the 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 (2006).  Thus, upon receipt of an application for a service-connection claim, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id.

After careful review of the claims folder, the Board finds that a letter dated in October 2007 satisfied the duty to notify provisions prior to the initial AOJ decision.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  In this regard, the letter advised the Veteran what information and evidence was needed to substantiate his service connection claim for a positive PPD test.  The Veteran was notified of how VA determines the disability rating and effective date if his claim is granted.  The letter also informed the Veteran of his and VA's respective duties for obtaining evidence.  The letter requested that he provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran.  

  
With respect to VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  The claims file contains the Veteran's service treatment records, VA treatment records and VA examination reports dated in October 2007, September 2009 and October 2012.  

The October 2007 VA examination report reflect that the examiner conducted a review of the Veteran's claims file in addition to obtaining an oral history and an evaluation of the Veteran with respect to symptoms of a positive PPD test, bilateral knee disabilities and low back disability.  The examiner documented in detail the claimed symptoms and the effect those symptoms have on his occupational functioning and daily activities.  With respect to the Veteran's service connection claim, the examiner determined that the Veteran did not have a current diagnosis of tuberculosis and provided an explanation based on the evidence of record.  Accordingly, the Board concludes that the examination is adequate for adjudication and rating purposes.  

The September 2009 and October 2012 VA examination reports reflect that the examiners obtained an oral history of the Veteran's service-connected disabilities and evaluated the Veteran with respect to his bilateral knees and back.  The examiners documented in detail the findings of the physical examinations, the claimed symptoms and the effect those symptoms have on his occupational functioning and daily activities.  Nonetheless, the VA examiner in September 2009 documented that he did not have a copy of the claims file and the October 2012 VA examination does not indicate that the examiner reviewed the claims file.  In some instances, the United States Court of Appeals for Veterans Claims (Court) has held that a failure to review the claims file renders a VA examination inadequate for rating purposes.  See, e.g., Proscelle v. Derwinski, 2 Vet. App. 629, 932 (1992) ("The [VA] examiner should have the Veteran's full claims file available for review."), but see Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997) (review of claims file not required where it would not change the objective and dispositive findings made during a medical examination).  See also 38 C.F.R. §§ 4.1, 4.2 (2011).  However, the Court held in Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008), that when VA undertakes to provide a medical examination or obtain a medical opinion, the relevant inquiry is whether "the examiner providing the report or opinion is fully cognizant of the claimant's past medical history."  In this case, the VA examiners obtained a history of the Veteran's bilateral knee and back disabilities and evaluated the Veteran's current symptoms.  The Board finds that the examiners were apprised of the relevant medical history of the Veteran as it pertains to his current claims.  Based on the foregoing, the Board concludes that the VA examinations are adequate for rating purposes.  

Additionally, the claims file contains the Veteran's statements in support of his claims.  The Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained.  The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration.  

Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claims on appeal at this juncture, without directing or accomplishing any additional notification and/or development action.

II.  Merits of the Claim for Service Connection

The Veteran contends that he had a positive purified protein derivative (PPD) test during active military service and that he was treated with isoniazid for nine months.  Therefore, the Veteran believes that he should receive compensation.  

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The Board notes that a diagnosis of pulmonary tuberculosis will be acceptable only when provided in: (1) service department records; (2) VA medical records of examination, observation or treatment; or (3) private physician records on the basis of that physician's examination, observation or treatment of the veteran and where the diagnosis is confirmed by acceptable clinical, x-ray or laboratory studies, or by findings of active tuberculosis based upon acceptable hospital observation or treatment.  38 C.F.R. § 3.374; Tubianosa v. Derwinski, 3 Vet. App. 181, 184 (1992).

The objective evidence of record fails to show that the Veteran has ever had active tuberculosis disease, either during service or within three years following service.  In fact, there is no evidence showing that the Veteran has ever been diagnosed with active tuberculosis.  Service treatment records reveal that the Veteran was provided a chest x-ray in April 2004, which was negative for pulmonary tuberculosis.  He was diagnosed with asymptomatic latent tuberculosis in June 2004.  A service treatment record dated in February 2005 shows that the veteran had completed the recommended latent tuberculosis preventive therapy.  He was instructed on the signs and symptoms of active tuberculosis and he was informed to follow up with his primary care physician if had any of those symptoms for more than three weeks.  The VA examiner in October 2007 determined that chest x-rays show no evidence of tuberculosis.  

With respect to the positive PPD test in April 2004 during military service, the Board notes that a positive PPD test is not itself a disability; rather it is a laboratory finding used in exploring a possible diagnosis of tuberculosis.  Purified protein derivative examination is used to test for exposure to Mycobacterium tuberculosis.  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1926, 2006 (31st ed. 2007).  Thus, service connection cannot be granted based solely on a showing of a positive PPD skin test during service.  Furthermore, the VA examiner in October 2007 determined that the Veteran has no residuals from the positive PPD test and/or the nine months of Isoniazid treatments.  

Entitlement to service connection for disease or injury is limited to cases in which such incidents have resulted in a disability.  See 38 U.S.C.A. § 1110.  Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (service connection requires medical evidence showing that the veteran has the claimed disability).  Therefore, in the absence of proof of a present disability, there can be no valid claim for service connection.  Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).   Accordingly, entitlement to service connection for a positive PPD test or tuberculosis is not warranted.

III.  Merits of the Claims for Increased Rating

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3 (2012).  When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt.  38 U.S.C.A. § 5107(b).   

In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where, as in the instant case, the appeals arise from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  See Fenderson v. West, 12 Vet. App. 119 (1999).  Thus, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  Id.  

In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.  38 C.F.R. § 4.40 (2012).  Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement.  38 C.F.R. § 4.45 (2012).  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or misaligned joints, due to arthritis, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59 (2012).  The United States Court of Appeals for Veterans Claims (Court) has emphasized that when assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on motion.   DeLuca v. Brown, 8 Vet. App. 202 (1995).

Bilateral Knee Patellofemoral Syndrome

The Veteran's patellofemoral pain syndrome of the bilateral knees are each currently rated as noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5014 (2012).  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned.  38 C.F.R. § 4.27 (2012).  The additional code is shown after the hyphen.  In this case, Diagnostic Code 5299 is used to identify musculoskeletal disabilities that are not specifically listed in the schedule, but are rated by analogy to similar disabilities under the schedule.  See 38 C.F.R. §§ 4.20, 4.27.  The assignment of Diagnostic Code 5014 shows that the Veteran's service-connected patellofemoral pain syndrome of the bilateral knees are rated as analogous to osteomalacia.  

Diagnostic Code 5014 provides that a disease be rated on limitation of motion of the affected part(s), as "arthritis, degenerative" under Diagnostic Code 5003.  38 C.F.R. § 4.71a, Diagnostic Code 5014 (2012); see also 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012).  Under Diagnostic Code 5003, arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint involved.  If, however, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic code, Diagnostic Code 5003 provides that no more than a 10 percent disability rating is appropriate if there is objective evidence of limitation of motion and degenerative arthritis established by X-ray findings.  38 C.F.R. § 4.71a, Diagnostic Code 5003; see also 38 C.F.R. § 4.59 (2012) (stating that with any form of arthritis, painful, unstable, or malaligned joints are entitled to at least the minimum compensable rating for the joint). 

In this case, the VA examination in October 2012 demonstrates that there was objective evidence of reduced flexion and pain on movement of the bilateral knees.  Nonetheless, the medical evidence of record shows that the Veteran does not have a diagnosis of arthritis in the bilateral knees based on x-ray findings.  Accordingly, the Veteran is not entitled to a 10 percent disability rating for objective pain and reduced range of motion under 38 C.F.R. § 4.71a, Diagnostic Code 5003.

Thus, in order to warrant a higher disability rating, there must be evidence of compensable limitation of motion involving the knee.  The Rating Schedule reflects that limitation of motion of the knee involves flexion and extension of the leg.  38 C.F.R. § 4.71a, Plate II (2012).  Additionally, applicable law indicates that separate ratings may be applied where a veteran has both a compensable limitation of flexion and a compensable limitation of extension of the same leg pursuant to Diagnostic Codes 5260 and 5261.  VAOPGCPREC 9-04; see 38 C.F.R. § 19.5 (2012) (stating that the Board is bound by precedent opinions of the General Counsel).

Evidence of flexion limited to 45 degrees or less is necessary in order to warrant a compensable disability rating for limitation of flexion of the knee.  38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012).  A compensable disability rating for limitation of extension of the knee is appropriate when extension more nearly approximates limitation to 10 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012).  A review of the Veteran's treatment and examination reports reveal that right and left knee extension has been full (i.e., zero degrees) throughout this appeal and flexion has been limited to no fewer than 130 degrees.  These findings represent the maximum limitation of motion found on examination during this period of the appeal, and reflect consideration of pain and limitation in function following repetitive movement.  In this regard, both the October 2007 and October 2012 VA examination reports indicate that the Veteran was asked to complete multiple repetitions of range of motion testing, and the examiners noted the point at which the Veteran complained of pain.  Ranges of motion less than 130 degrees of flexion were not reported and there was no evidence of reduced range of motion on extension.  Therefore, even with consideration of these additional limiting factors, a compensable disability rating is not demonstrated under either diagnostic code applicable to limitation of motion of the knee, and the Veteran is therefore entitled to no more than his currently assigned noncompensable disability rating under Diagnostic Code 5014.

The Board has also considered whether the Veteran is entitled to a compensable disability rating under alternate diagnostic codes for either knee.  The diagnostic codes that evaluate disabilities of the knee that have not already been considered include Diagnostic Codes 5256, 5257, 5258, 5259 and 5262.  The evidence shows that the Veteran's service-connected bilateral knee disabilities are not manifested by ankylosis of the knee, recurrent subluxation or lateral instability, dislocated semilunar cartilage, removal of semilunar cartilage or impairment of the tibia or fibula.  Accordingly, diagnostic codes 5256, 5257, 5258, 5259 and 5262 for knee and leg conditions are not applicable in this case.  See 38 C.F.R. § 4.150, Diagnostic Code 5256-5259 and 5262.

The Board has reviewed the record to determine whether staged ratings are appropriate with respect to the Veteran's service-connected bilateral knee patellofemoral syndrome.  The medical evidence of record shows that the bilateral knee disabilities have not fluctuated materially during the course of this appeal.  As such, a staged rating is not warranted.

Extraschedular Consideration

According to VA regulation, in exceptional cases where schedular ratings are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. § 3.321(b)(1) (2012).  An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).  

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three step inquiry for determining whether a Veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and it is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating.

In this case, the evidence does not show such an exceptional disability picture that the available schedular evaluation for the service-connected bilateral knee patellofemoral syndrome is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's bilateral knee disability with the established criteria found in the rating schedule for knee disabilities show that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  The Board finds that the rating criteria considers the functional impact of the Veteran's bilateral knee disability and the evidence of record does not indicate that it has caused marked interference with employment that is not already contemplated in the rating schedule.  Furthermore, the evidence of record does not show that his service-connected bilateral knee patellofemoral syndrome has necessitated frequent periods of hospitalization or otherwise rendered impracticable the regular schedular standards for rating such disability.  Under these circumstances, and in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted.  

Lumbar Spine Strain

The Veteran is currently evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012) for his service-connected lumbar spine strain.  Under Diagnostic Code 5237 (lumbosacral strain), 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, a 10 percent rating is assigned 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 assigned under Diagnostic Code 5237 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 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.   Forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent disability rating.   A 50 percent disability rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine.

Under 37 C.F.R. § 4.71a, Plate V, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is 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.  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 (1), appending the diagnostic code, also articulates that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code.  Id., Note (1).

During the pendency of this appeal, the RO increased the disability rating assigned to the Veteran's lumbar spine strain from noncompensable to 10 percent under Diagnostic Code 5237, effective June 7, 2008.  The Board has considered whether the Veteran is entitled to a higher disability rating under the assigned stages of this appeal.  Additionally, the Board has considered whether additional staging is appropriate.  For reasons discussed in more detail below, the Board finds that the stages created by the RO are appropriate in light of the competent medical evidence of record and that there is no competent evidence that the Veteran's service-connected disability underwent further increases in severity during this appeal sufficient to warrant additional staged ratings.

Prior to June 7, 2008

The Veteran was provided with a VA examination for his back disability in October 2007.  He reported pain and stiffness in the lumbar spine that has been progressive since 2000.  The Veteran experiences flares approximately one to two times per week.  These flare-ups usually occur in the morning, after bending or lifting any heavy objects.  He does not take any medication and the symptoms tend to get better after stretching.  The lumbar spine disability has not required any ambulatory assistive devices.  The Veteran also indicated that his lumbar spine strain does not affect his work or daily routine.

Physical examination revealed that he walked with a normal gait without the use of any assistive devices.  The Veteran had full range of motion of the lumbar spine with flexion to 90 degrees, 30 degrees of extension, 30 degrees of bilateral rotation and 30 degrees of lateral flexion in both directions.  The examiner noted that there was no loss of range of motion due to pain, weakness, fatigue, incoordination or instability to include on repetitive motion.  X-rays of the lumbar spine were normal.  

The evidence of record, the most pertinent of which was discussed above, shows that prior June 7, 2008 forward flexion of the thoracolumbar spine was not limited to 85 degrees or less and the combined range of motion of the thoracolumbar spine was greater than 235 degrees.  The Veteran did not have any additional loss of range of motion due to pain, weakness, fatigue, incoordination or instability to include on repetitive motion.  There was no objective evidence of muscle spasm, guarding or localized tenderness.  The evidence shows that the Veteran does not have any postural abnormality, fixed deformity (ankylosis) or abnormality of the musculature of the back.  Therefore, the Veteran is not entitled to compensable disability rating under the General Rating Formula for Diseases and Injuries of the Spine prior to June 7, 2008. 

The Board further notes that no other potentially applicable diagnostic code would provide for compensable disability rating prior to June 7, 2008.  As indicated above, notes accompanying Diagnostic Code 5237 indicate neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code.  The Veteran did not report and the medical evidence of record does not otherwise show that the Veteran's lumbar spine strain has resulted in any neurological impairment to include bowel or bladder impairment.  Accordingly, the evidence prior to June 7, 2008 does not show any evidence of neurological abnormalities due to the Veteran's low back disability.

Spine conditions may also be rated under Diagnostic Code 5243 for intervertebral disc syndrome (IVDS).  The criteria for IVDS rates the disability according to the number of "incapacitating episodes" suffered per year.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012).  A 20 percent rating is warranted where IVDS results in incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months and a 40 percent rating is warranted where IVDS results in incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1).  In this case, the evidence of record does not show that the Veteran has a diagnosis of IVDS or that it results in physician prescribed bed rest.  Specifically, the Veteran reported in the October 2007 VA examination that his lumbar spine strain does not affect his work or daily routine.  

As of June 7, 2008

The Veteran was provided with another VA examination in September 2009.  The Veteran reported an increase in localized low back pain.  His symptoms involved the right low back and he denied any radiation of pain to either lower extremity.  Sometimes, he would experience some tingling and numbness in his feet when he was sitting for a very long period while driving in a truck delivering soft drink vending machines.  He had not missed any work over the past year due his back problems.  The Veteran was able to walk for any amount of time and sit for any amount of time with no significant limitations.  He used a low back brace when he was working.  His symptoms were relieved by stretching his low back and he took Baclofen and Etodolac for pain.  The Veteran denied having any incapacitating episodes regarding his low back and he has had no flare-ups of back pain that have required any bed rest.  

Physical examination revealed a minimal degree of acute distress to his low back.  The Veteran's low back had flexion from zero to 70 degrees with no pain at the end point.  Extension was from zero to 30 degrees without pain.  Right and left lateral flexion was from zero to 30 degrees with no evidence of pain.  Bilateral rotation was from zero to 30 degrees with no pain at the end point.  The low back was not tender to palpation.  The Veteran was able to heel and toe walk well, without any weakness.  There was no swelling in the paraspinal muscles and no obvious spasm was palpable.  There was no erythema, hyperemia or ecchymosis of the lumbar paraspinal muscles.  Sciatic stress signs were negative.  The Veteran had a trace reflex at both patellae and zero reflexes in his Achilles.  

The most recent VA examination of record, dated in October 2012, reveals that the Veteran's low back pain had increased in severity over the previous three years.  The Veteran reported that his low back hurt everyday and the pain sometimes radiated down the left leg with numbness and tingling.  He used a TENS unit, which helped his back symptoms.  His low back symptoms were aggravated by flexing forward, lifting/carrying over 40 pounds or sitting for over 30 minutes.  His low back disability had not required physician prescribed bed rest in the prior 12 month period.  The Veteran denied flare-ups that impacted the function of the thoracolumbar spine.  Forward flexion of the thoracolumbar spine was to 80 degrees with objective evidence of painful motion beginning at 80 degrees.  Extension was to 25 degrees with objective evidence of painful motion beginning at 25 degrees.  Right and left lateral flexion was limited to 25 degrees with objective evidence of painful motion beginning at 25 degrees.  Right lateral rotation was to 30 degrees with no evidence of pain.  Left lateral rotation was to 20 degrees with no objective evidence of painful motion.  There was no additional loss of range of motion of the thoracolumbar spine following repetitive-use testing.  However, there was evidence of less movement than normal and pain on movement after repetitive use.  The neurological examination was normal.  The examiner noted that the Veteran did not have IVDS of the thoracolumbar spine.  Imaging studies of the thoracolumbar spine revealed arthritis.  

Based on the evidence of record, the most pertinent discussed above, the Board finds that at the worst flexion of the Veteran's thoracolumbar spine was limited to 70 degrees on examination.  The thoracolumbar spine was not limited to 60 degrees or less and the combined range of motion of the thoracolumbar spine was greater than 120 degrees even with consideration of limitation of motion due to pain and any limitation in function after repetitive use.  Furthermore, the Veteran had a normal gait with no evidence of abnormal spinal contour, muscle spasm, or guarding.  Therefore, even considering loss due to pain after repetitive use, the Veteran is not entitled to an evaluation higher than 10 percent under the General Rating Formula for Diseases and Injuries of the Spine as of June 7, 2008.

The Board has also considered whether the Veteran is entitled to a separate disability rating or a higher disability rating under other Diagnostic Codes.  The October 2012 VA examiner reveals that the Veteran does not have any bladder problems or bowel problems  The VA examinations in September 2009 and October 2012 also show that the Veteran did not have any objective neurological abnormalities even though he complained of left leg numbness and tingling.  Furthermore, there is no other evidence of record that shows that the Veteran has any neurological disorder as a residual of his back disability.  Therefore, the Veteran is not entitled to a separate rating for a neurological disorder due to his service-connected lumbar spine strain. 

Under Diagnostic Code 5243, for intervertebral disc syndrome (IVDS), a 20 percent rating is warranted where IVDS results in incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012).  The medical evidence does not support a finding of IVDS or incapacitating episodes with physician prescribed bed rest as described in the regulations.  See id. at Note (1).

In conclusion, the Board notes that the benefit of the doubt is to be resolved in the Veteran's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue.  However, the Board finds that the preponderance of the evidence is against the claim and an assignment of an initial compensable disability rating prior to June 7, 2008 and an initial disability rating in excess of 10 percent as of June 7, 2008 for service-connected lumbar spine strain is not warranted.  See 38 C.F.R. § 3.102 (2012).

Extraschedular Consideration

With respect to whether the claim should be referred for extraschedular consideration, the evidence does not show such an exceptional disability picture that the available schedular evaluation for the service-connected back disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's lumbar spine strain with the established criteria found in the rating schedule for lumbosacral strain shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology.  In this regard, the regulations specifically address the Veteran's low back pain with resulting reduced range of motion.  The rating criteria consider the functional impact of the Veteran's low back pain and reduced range of motion.  The evidence does not indicate that his lumbar spine strain has caused marked interference with his employment that is not already contemplated in the rating schedule.  Furthermore, the medical record does not show that the Veteran's service-connected back disability has necessitated frequent periods of hospitalization or otherwise rendered impracticable the regular schedular standards for rating such disability.  Under these circumstances, and in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted.








ORDER

Entitlement to service connection for tuberculosis and/or a positive PPD test is denied.

Entitlement to an initial compensable disability rating for right knee patellofemoral syndrome is denied.

Entitlement to an initial compensable disability rating for left knee patellofemoral syndrome is denied.

Entitlement to an initial compensable disability rating prior to June 7, 2008 and a disability rating in excess of 10 percent as of June 7, 2008 for lumbar spine strain is denied.




____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs