Citation Nr: 1320686 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 10-34 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating higher than 40 percent for degenerative arthritis of the lumbosacral spine. 2. Entitlement to a separate rating for bowel impairment due degenerative arthritis of the lumbosacral spine 3. Entitlement to a total disability rating for compensation based on individual unemployability. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran, who is the appellant, served on active duty from June 1976 to December 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of April 2009 of a Department of Veterans Affairs (VA) Regional Office (RO). The appeal was previously before the Board in December 2012. At that time, the Board denied the Veteran's claim for an extension of a temporary total rating, and it remanded the claim for increase. The development ordered for the claim for increase has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). The claim for a separate rating for bowel impairment due degenerative arthritis of the lumbosacral spine and the claim for a total disability rating for compensation based on individual unemployability are REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT Degenerative arthritis of the lumbosacral results in limited flexion and extension, but unfavorable ankylosis of the thoracolumbar spine with at least one characteristic of unfavorable ankylosis is not shown. CONCLUSION OF LAW The criteria for a rating higher than 40 percent rating for degenerative arthritis of the lumbosacral spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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 v. Nicholson, 19 Vet. App. 473, 484-86 (2006). In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letter dated in November 2008. The VCAA notice included the type of evidence needed to substantiate a claim for increase. The Veteran was notified that VA would obtain service records, VA records, and records from other Federal agencies, and that he could submit records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non Federal records on his behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004) (pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (a worsening or increase in severity of the disability and the effect that worsening has on employment). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records and VA and private medical records. In May 2013, the Veteran submitted additional evidence and did not waive initial consideration of the evidence by the RO. As the evidence is either cumulative or redundant or does not bear on the criteria for the next higher, the evidence need not be referred to the RO for initial consideration. 38 C.F.R. § 20.1304. The Veteran was afforded VA examinations in December 2008, in July 2010, in May 2011, and inarch 2013. As the reports of the VA examinations were based on the Veteran's medical history and described the disability in sufficient detail so that the Board's decision is a fully informed one, the examinations are adequate to rate the disability. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles for Rating Disabilities A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating factors for a disability of the musculoskeletal system included functional loss. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion, weakness, or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Vertebrae are considered groups of joints. As for joints, the factors of disability reside in reductions of the joints normal excursion of movements in different planes. Factors for considerations include excess fatigability, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing. 38 C.F.R. § 4.45; DeLuca, at 206-07. Also with periarticular pathology, painful motion is factor to be considered. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Criteria for Rating Degenerative Arthritis of the Lumbosacral Spine Degenerative arthritis of the lumbosacral spine is currently rated 40 percent under Diagnostic Code 5242. Degenerative arthritis is rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The criteria for rating a disability of the spine are for application with or without symptoms such as pain and whether or not it radiates, stiffness, or aching in the area of the spine affected. Under the General Rating Formula for Diseases and Injuries of the Spine, the criterion for the next higher rating, 50 percent, is unfavorable ankylosis. For the purpose of VA compensation, 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. Plate V, 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, incapacitating episodes having a total duration of at least 6 weeks during the past 12 months is rated 60 percent. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Note 1, following the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Evidence On VA examination in December 2008, the Veteran stated that his back pain was getting worse. He stated that he suffered from pain all the time, which was worse in the morning and at night. On examination, the Veteran walked with a steady gait without the use of aids. He squatted with minimal difficulty. He had no postural abnormalities or fixed deformities. He had some mild paraspinal tenderness and was somewhat guarded in movement. For range of motion, flexion was to 50 degrees and extension was to 15 degrees. Left and right lateral flexions were to 15 degrees. Left and right lateral rotations were to 15 degrees. Each movement was described as moderately limited due to pain. Repetitive motion did not result in loss of range of motion, but did result in increased guarding, weakness, grimacing, and incoordination. In March 2009 in the notice of disagreement, the Veteran stated that contrary to the report of the VA examination he could not squat or walk with a steady gait. In June 2009, the Veteran stated that he was seeing a chiropractor, and that he used a cane to walk. In July 2009, the Veteran stated that he suffered from severe pain in the h legs. He stated that he walked with a cane and that he takes short breaks when walking. The Veteran stated that he was attending physical therapy. In September 2009, the Veteran complained of suffering from severe back pain. Private medical records from Dr. T.R.W. show that in July 2009 that the Veteran suffered from severe spinal stenosis and he had degenerative disc disease of several discs. Dr. T.R.W. reported that the Veteran could not stand unsupported for more than 10 minutes, and that the Veteran walked with a cane. Dr. T.R.W. stated range of motion was limited by 25 percent because of lower back pain. On VA examination in July 2010, the Veteran walked with a stooped posture. His gait was antalgic gait and he used a cane. For range of motion, forward flexion was from 10 to 40 degrees, extension was from 10 to 20 degrees, left lateral flexion was from 10 to 20 degrees, right lateral flexion was from 10 to 20 degrees, left lateral rotation was from 0 to 10 degrees, and right lateral rotation was from 0 to 10 degrees. There was objective evidence of pain with motion. Repetitive motion resulted in increased pain and loss of range of motion. With repetitive motion, flexion was from 10 to 30 degrees, extension was from 10 to 20 degrees, left lateral flexion was from 10 to 20 degrees, right lateral flexion was from 10 to 20 degrees, left lateral rotation was from 0 to 10 degrees, and right lateral rotation was from 0 to 10 degrees. In July 2010 in the substantive appeal, the Veteran stated that he suffered from severe back pain without relief. Private medical records show that the Veteran had a lumbar laminectomy in August 2010. Private treatment records from October 2010 show that the Veteran's back pain was stable. The Veteran stated that he walked for exercise. The Veteran had full active range of motion with flexion but limited range of motion with extension. In January 2011 the Veteran again complained of intermittent, mild lower back pain. The Veteran had limited extension of 10 degrees with mild pain in the lumbar region. In April 2011, the Veteran had mild pain and limited range of motion. He had pain with extension, and his gait was antalgic. On VA examination in May 2011, the Veteran reported that he returned to work but continuing to suffer from persistent pain. He stated that he could not sit or stand for more than 15 to 20 minutes without pain. He stated that he difficulty stooping, bending, climbing, and standing. The Veteran stated that he had flare-ups weekly lasting from 1 to 2 days. On examination, the Veteran reported that he had 3 episodes of thoracolumbar incapacitation and that he used a cane and walker. The examiner described the Veteran's posture as being in flexed position, and stated that the Veteran had an antalgic gait. The Veteran had lumbar flattening, but not ankylosis. The Veteran also suffered from spasms, guarding, pain and tenderness. The Veteran reported losing 25 weeks from work as a result of illness, surgery, and doctors appointments. For range of motion, flexion was from 11 to 67 degrees, extension was from 11 to 18 degrees, left lateral flexion was from 0 to 24 degrees, right lateral flexion was from 0 to 21 degrees, left lateral rotation was from 0 to 10 degrees, and right lateral rotation was from 0 to 10 degrees. There was objective evidence of pain with active motion. Repetitive motion flexion was from 11 to 52 degrees, extension was from -11 to 11 degrees, left lateral flexion was from 0 to 21 degrees, right lateral flexion was from 0 to 18 degrees, left lateral rotation was from 0 to 10 degrees, and right lateral rotation of 0 to 10 degrees. In December 2011, the Veteran's wife stated that the Veteran's back was worse. In December 2011, a coworker stated that the Veteran was in a lot of pain during and after work. The co-worked stated that it was hard for the Veteran to perform his tasks, and that he left work early many times. A second coworker stated that the Veteran was consistently in pain and that his performance had deteriorated. On VA examination in March 2013, the Veteran stated that he had at least 6 weeks of incapacitating episodes over the previous 12 months and 96 days of incapacitation. He stated that he used to miss work until he recently became unemployed. For range of motion flexion was to 35 degrees with pain at 0. Extension was to 10 degrees with pain beginning at 0. Left and right lateral flexion was to 5 degrees with pain beginning at 0. Left lateral rotation was to 15 degrees and right lateral rotation was to 10 degrees with pain beginning at 0. The Veteran was not able to perform repetitive use testing. The Veteran's functional loss was reported as less movement than normal, weakened movement, incoordination, pain, instability, disturbance of locomotion, and interference with sitting, standing, or weightbearing. VA records from 2010 to 2013 show that the Veteran complained of back pain. The records do not show that the Veteran was prescribed bed rest by a physician to treat his service-connected back disability. Analysis The Veteran has separate ratings for urinary impairment and radiculopathy of the right and left lower extremities. And the separate ratings for the objective neurological abnormalities are not on appeal. The Veteran's back disability is currently rated 40 percent. Under the General Rating Formula for Diseases and Injuries of the Spine, the criterion for the next higher rating, 50 percent, is unfavorable ankylosis of the thoracolumbar spine. For the purpose of VA compensation, unfavorable ankylosis is a condition in which the entire thoracolumbar 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 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. While the Veteran has limited flexion and extension, there is no evidence of unfavorable ankylosis, that is, the lumbosacral spine fixed in flexion or extension with 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 subluxation or dislocation, or neurologic symptoms due to nerve root stretching. In the absence of unfavorable ankylosis with at least one characteristic of unfavorable ankylosis, the findings do not more nearly approximate or equate to unfavorable ankylosis as defined by VA regulation. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the criteria for the next higher rating, 60 percent, are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. On VA examination in March 2013, the Veteran stated that he had at least 6 weeks of incapacitating episodes over the previous 12 months and 96 days of incapacitation. The term "incapacitating episodes" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Although the Veteran has described incapacitating episodes, there is no evidence that the Veteran has been prescribed bed rest by either a private physician or a VA physician. While the Veteran is competent to describe periods of acute signs and symptoms, in the absence of incapacitating episodes as defined by VA regulation, the criteria for the next higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes have not been met. For the above reasons, the preponderance of the evidence is against the claim for a rating higher than 40 percent at any time during the appeal, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability levels and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned ratings are adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Comparing the disability of the lumbosacral spine to the Rating Schedule, the degree of disability is encompassed by the Rating Schedule and the assigned schedular rating is, therefore, adequate and no referral for an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1). (The Order follows on the next page.). ORDER A rating higher than 40 percent for degenerative arthritis of the lumbosacral spine is denied. REMAND On VA examination in March 2013, the Veteran complained of stool incontinence and increased stool frequency, which reasonably raises the question of a separate for bowel impairment. As the evidence is insufficient to decide the question, further development under ht duty to assist is needed. On VA examination in March 2013, the Veteran indicated that he was no longer employed, which reasonably raises the question for a total disability rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). Accordingly, the case is REMANDED for the following actions: 1. Ensure VCAA compliance with the duty to notify and the duty to assist, including a VA examination, if necessary, on the claim for a total disability rating for compensation based on individual unemployability. 2. After the development, adjudicate the claim for a separate for bowel impairment and the claim for a total disability rating for compensation based on individual unemployability. If any benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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). ______________________________________________ George E. Guido, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs