Citation Nr: 1321992 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 09-49 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating in excess of 10 percent for low back syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from July 1976 to June 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that in a December 2009 substantive appeal, the appellant requested a local hearing in Waco, Texas. The appellant was scheduled for a local hearing in July 2010 and notified of the hearing in an April 2010 letter. However he did not report for the hearing. Thus, the appellant's hearing request is deemed to be withdrawn. FINDING OF FACT During the period on appeal, the appellant's low back syndrome did not limit forward flexion to 60 degrees, did not result in a combined range of motion greater than 120 degrees, did not cause muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, did not result in ankylosis, and did not have associated objective neurological abnormalities for which separate ratings can be granted. CONCLUSION OF LAW During the period on appeal, the criteria for a rating in excess of 10 percent for low back syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a , Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). More specific notice is required in claims for increased compensation. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's increased rating claims. Prior to initial adjudication of the claim, appropriate notice was provided in an April 2008 letter. Mayfield, 444 F.3d at 1333; See Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran appropriate VA examinations in February 2008 and August 2010. The examinations are adequate because they are based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder and appropriate diagnostic tests, to include x-ray. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The appellant has not reported receiving any recent treatment specifically for this condition and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. There is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The VA examination reports are thorough and provided findings pertinent to the rating criteria. The examinations in this case are adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 4.1 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the appellant. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, where, as here, the appellant is appealing the rating for an already established service-connected condition, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The appellant's service-connected low back syndrome is currently rated under Diagnostic Code 5237, for lumbosacral strain. 38 C.F.R. § 4.71a. Under Diagnostic Code 5237, the disability is rated under the General Rating Formula for Diseases and Injuries of the Spine. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal countors, 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, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 unfavorable ankylosis of the entire cervical spine; or, 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. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, are evaluated separately under an appropriate diagnostic code. 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 these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate 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, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The appellant's claim for an increased rating was received on February 29, 2008. As such, the rating period on appeal is from February 28, 2007. 38 C.F.R. § 3.400(o)(2) (2012). III. Analysis The appellant contends that he is entitled to a rating in excess of 10 percent for his service-connected low back disability. For the reasons that follow, the Board finds that a higher rating is not warranted. March 2007, December 2007 and March 2008 VA treatment records reflect that the appellant was able to touch the toes without bending the knees. The December 2007 VA treatment record indicates that the appellant requested Motrin for his low back pain. The March 2008 VA treatment record noted that the appellant had chronic lower back pain. In an April 2008 statement, the appellant stated that his back condition had worsened. He stated that he could not lift heavy weights of 25 to 30 plus pounds without having his back conditions affect him for several days, such as limping around in pain. He stated that he could bend over and touch his toes when he was not in pain or his condition had not flared-up. However, at other times he had excruciating pain in his lower back that was very debilitating for him to walk or even function at work without the use of a back brace. He stated that he could not exercise or run with regularity because of his back condition. He stated that he limited lifting weights to 10 pounds so as not to aggravate his back. The appellant's back was evaluated at a VA examination in May 2008. The appellant denied having a history of urinary incontinence, fecal incontinence, erectile dysfunction, leg or foot weakness, falls, unsteadiness, or dizziness. The appellant denied having a history of flare-ups of spinal conditions. A sensory examination revealed normal results in the upper extremities. A reflex examination indicated the appellant had normal reflexes. On examination, the thoracolumbar spine had flexion of 0 to 90 degrees. Resisted isometric movement was normal. There was no pain on active or passive motion. There was no pain or loss of motion after repetitive use of the joint. The thoracolumbar spine had extension of 0 to 35 degrees and resisted isometric movement that was normal. There was no pain on active or passive motion or after repetitive use. There was no additional loss of motion on repetitive use of the joint. The thoracolumbar spine had right lateral flexion of 0 to 40 degrees, left lateral flexion of 0 to 40 degrees, left lateral rotation of 0 to 40 degrees, and right lateral rotation of 0 to 40 degrees with no pain on motion or after repetitive use. There was no loss of motion on repetitive use of the joint. Lasegue's sign was not positive. A May 2008 X-ray revealed essentially normal views of the lumbar spine. There were a few small scattered vertebral body endplate osteophytes. The VA examiner noted that the appellant was employed full-time as a clerk at the post office and he had no time lost from work during the last 12 month period. The VA examiner found there were no significant effects of the back disability on usual occupation. In a May 2009 notice of disagreement, the appellant stated that when he had his VA examination, he was having a very good day and this was not the norm. An August 2009 VA treatment record reflects that the appellant reported having had more lower back pain radiating to the right hip at times on prolonged standing or heavy lifting. He could ambulate without using a walking cane. On examination, a mild limitation of motion of the lower back was noted. The appellant was able to squat down but he needed to hold onto furniture to recover with some pain in the right hip. There were no motor or sensor deficits. The assessment was chronic lower back pain. The appellant's back disability was evaluated at another VA examination in August 2010. The appellant did not report having a history of urinary incontinence, fecal incontinence, erectile dysfunction, numbness, paresthesias, leg or foot weakness or unsteadiness. There was no history of fatigue, decreased motion, stiffness, weakness, spasm or spine pain. There were no incapacitating episodes of spine disease. The appellant was employed full-time by the postal service and had no time lost from work during the past 12-month period. At work, the appellant was limited to lifting 70 pounds and he complained of pain with lifting over 30 pounds. He planned to retire from the postal service in September 2010. On examination, the appellant's gait was normal. There were no abnormal spinal curvatures or thoracolumbar spine ankylosis. There were no objective abnormalities of thoracolumbar sacrospinalis. There was no muscle spasm, localized tenderness or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. The thoracolumbar spine had flexion of 0 to 90 degrees and extension of 0 to 35 degrees. The spine also had right and left lateral flexion of 0 to 40 degrees, and right and left lateral rotation of 0 to 35 degrees. There was no objective evidence of pain on active range of motion. There were no additional limitations after three repetitions of range of motion. Reflex examination results were normal. A motor examination was also normal. The appellant had normal muscle tone and no muscle atrophy. Lasegue's sign was not positive. There were no other significant physical exam findings. An August 2009 X-ray indicated there was minimal marginal osteophyte formation consistent with degenerative disc disease at L2/3 and L3/4; radiographs of the lumbar spine were otherwise unremarkable. Based on the evidence of record, the Board finds that the appellant is not entitled to a higher rating under Diagnostic Code 5237. As noted above, the next higher rating of 20 percent is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees. The evidence does not demonstrate that the appellant had forward flexion of the thoracolumbar spine of 60 degrees or less during the period on appeal. At the May 2008 and August 2010 VA examinations, the appellant had forward flexion of 0 to 90 degrees. The appellant's VA treatment records from March 2007, December 2007 and March 2008 reflect that the appellant was able to touch his toes without bending his knees. A 20 percent rating may also be assigned if the combined range of motion of the thoracolumbar spine is limited to 120 degrees. As noted in Note (2) of the General Rating Formula for Diseases and Injuries of the Spine, 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 May 2008 VA examination report indicated the thoracolumbar spine had flexion of 0 to 90 degrees and extension of 0 to 35 degrees. The thoracolumbar spine had right lateral flexion of 0 to 40 degrees, left lateral flexion of 0 to 40 degrees, left lateral rotation of 0 to 40 degrees, and right lateral rotation of 0 to 40 degrees. Thus, the combined range of motion of the thoracolumbar spine was greater than 120 degrees. The August 2010 VA examination report indicates the thoracolumbar spine had flexion of 0 to 90 degrees and extension of 0 to 35 degrees, right and left lateral flexion of 0 to 40 degrees and right and left lateral rotation of 0 to 35 degrees. Thus, the combined range of motion of the thoracolumbar spine was again greater than 120 degrees. Consequently, the appellant did not have a combined range of motion of the thoracolumbar spine of 120 degrees or less during the period on appeal. The evidence also does not demonstrate the appellant had muscle spasm or guarding severe enough to result in an abnormal gait or an abnormal spinal contour such as scoliosis. The August 2010 VA examiner noted that there was no muscle spasm, localized tenderness or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. In Deluca v. Brown, 8 Vet. App. 202 (1995), the Court held that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability. See 38 C.F.R. §§ 4.40, 4.45 and 4.59 (2012). The Board notes that the appellant is competent to report symptoms capable of lay observation such as back pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board finds that the appellant is not entitled to a higher rating due to functional impairment. In the April 2008 statement, the appellant stated that he limited lifting weights to 10 pounds so as not to aggravate his back. He also reported having flare-ups. However, the May 2008 VA examination report reflects that the appellant denied having a history of flare-ups of spinal conditions. At the May 2008 VA examination, the appellant had no pain on active or passive motion of the spine. There was also no pain after repetitive use and significantly, no additional loss of motion on repetitive use of the joint on flexion, extension, lateral flexion or lateral rotation. The August 2009 VA treatment record noted the appellant could ambulate without using a cane. The August 2010 VA examination report noted that there was no objective evidence of pain on active range of motion and there were no additional limitations after three repetitions of range of motion. Based on the evidence of record, the Board does not find that the appellant had additional functional limitations that warrant a higher rating. The appellant's back pain and limitation of motion are already contemplated by the 10 percent rating. The appellant did not have any pain or loss of motion on repetitive use of the back at either of his VA examinations. The Board also finds that the evidence does not show the appellant has any associated neurologic abnormalities. The August 2009 VA treatment record reflects that the appellant reported having had lower back pain radiating to the right hip at times on prolonged standing or heavy lifting. However, there is no objective evidence of radiculopathy. On examination, there were no motor or sensory deficits. At the May 2008 VA examination, the appellant denied having a history of urinary incontinence, fecal incontinence, erectile dysfunction or leg or foot weakness. The May 2008 VA examination also noted that a sensory examination revealed normal results in the upper extremities and a reflex examination indicated the appellant had normal reflexes. The August 2010 VA examination report noted that reflex examination results were normal. The appellant had normal muscle tone and no muscle atrophy. The appellant did not report having a history of urinary incontinence, fecal incontinence, erectile dysfunction, numbness, paresthesias, leg or foot weakness or unsteadiness. Based on this evidence, the Board finds that the overall evidence demonstrates that the appellant did not have any neurological disabilities related to his service-connected low back disability. The Board has considered whether extraschedular consideration is warranted based on the evidence of functional, including occupational, impairment secondary to the left knee disability. See Barringer v. Peake, 22 Vet. App. 242 (2008). The discussion above reflects that the symptoms of the appellant's low back disability are contemplated by the applicable rating criteria. The competent medical evidence of record shows that the low back disability is primarily manifested by mild limitation of motion and pain. The applicable diagnostic codes used to rate the appellant's disability provide for ratings based on limitation of motion and the effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The effects of the appellant's disability have been fully considered and are contemplated in the rating schedule. Consideration of whether the appellant's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). TDIU is an element of all appeals for an increased evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2010). In this case, however, TDIU consideration is not warranted. The appellant has not contended and the evidence does not indicate that the appellant is unemployable as a result of his low back disability. The VA examination reports reflect that the appellant was employed full-time by the postal service and had no time lost during the past 12 month period due to his service-connected disability. The August 2010 VA examination report noted that the appellant planned to retire from the postal service in September 2010. He did not indicate that he was retiring due to his service-connected low back disability. Thus, the Board finds that the issue of entitlement to a TDIU has not been raised by the record. In sum, the Board finds that a preponderance of the evidence is against a rating in excess of 10 percent for the appellant's service-connected low back disability. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).3 ORDER Entitlement to a rating in excess of 10 percent for low back strain is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs