Citation Nr: 1323433 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 07-34 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating higher than 40 percent for lumbar strain. 2. Entitlement to a total disability rating for compensation based on individual unemployability on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from May 2002 to July 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in March 2007 of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2011, the Veteran did not appear at a hearing before the Board. Without good cause shown for the failure to appear, the request for the hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). In a November 2011 decision, the Board denied the Veteran's claim for entitlement to a rating higher than 40 percent for lumbar strain. The Board also remanded the issue of entitlement to a total disability rating for compensation based upon individual unemployability on an extraschedular basis, for further development. The Veteran then appealed the Board's November 2011 decision, as to the issue of entitlement to rating higher than 40 percent for lumbar strain, to include the Board's finding that referral for extraschedular consideration of his lumbar strain (low back) disability was unwarranted, to the United States Court of Appeals for Veterans Claims (Court). In an October 2012 Memorandum Decision, the Court set aside the Board's November 2011 decision, as to the issue of entitlement to a rating higher than 40 percent for lumbar strain, to include the Board's finding that referral for extraschedular consideration of his lumbar strain (low back) disability was unwarranted. The claim for a total disability rating is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Lumbar strain is manifested by flexion to 30 degrees or less; there is no evidence of ankylosis or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months period. CONCLUSION OF LAW The criteria for a rating higher than 40 percent for lumbar strain have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & 2012); 38 C.F.R. § 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243 (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 Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is 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 December 2006. The notice included the type of evidence needed to substantiate the claim for increase, namely, evidence that the symptoms had increased and the effect on employment. The Veteran was notified that VA would obtain VA records and records from other Federal agencies, and that he could submit other 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, 119-120 (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. Peake, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment). Further VCAA notice is not required. 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 VA records and afforded the Veteran VA examinations in October 2005, October 2007, and April 2012. 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 the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, 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 Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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. 38 U.S.C.A. § 1155. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). 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. 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." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Rating factors for a disability of the musculoskeletal system included functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Also with any form of arthritis, painful motion is factor to be considered. 38 C.F.R. § 4.59. Rating Criteria for Lumbar Strain Lumbar strain is rated under Diagnostic Code 5237. Under 38 C.F.R. § 4.71a, Diagnostic Code 5237 is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula, the criteria for a 40 percent rating are forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The criterion for a 50 percent rating is unfavorable ankylosis of the entire thoracolumbar spine. Also any objective neurological abnormality may be separately rated under the appropriate Diagnostic Code. Normal range of motion of the lumbar spine ia flexion to 90 degrees, extension to 30 degrees, lateral flexion, right and left, to 30 degrees, and rotation, right and left, to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Ankylosis is immobility and consolidation of a joint due to disease, injury or surgical procedure. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 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; or neurologic symptoms due to nerve root stretching. In evaluating disabilities of the spine, the criteria is for application 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. 38 C.F.R. § 4.71a, the General Rating Formula for Diseases and Injuries of the Spine. In addition, as noted below, there is a suggestion that the Veteran has a bulging disc at L4-L5. Therefore, under Diagnostic Code 5243, the disability may be rated under either the General Rating Formula or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in a higher rating. 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. An incapacitating episode is a period of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician. Facts On a VA examination in October 2005, the Veteran stated that he did not experience any lower extremity symptoms, bladder or bowel symptoms, or erectile dysfunction. The Veteran did experience numbness on a daily basis, but no paresthesia, unsteadiness, flare- ups, or fatigue. He had moderate constant pain, but no radiation. He did not have any incapacitating episodes. On examination, the Veteran had a normal head position and posture as well as spinal curvature. There was no atrophy. Gait was normal. There was no ankylosis. Forward flexion was to 30 degrees with pain starting at the first degree and continuing to 30 degrees. Pain and other factors such as weakness, fatigue, or lack of endurance did not reduce the range of motion even with repetition. There was no incoordination. There were no motor, sensory, or reflex abnormalities. The Veteran could walk on both his heels and toes, tandem walk, squat and then rise upright without assistance. X-rays for the lumbar spine did not reveal any significant osseous or articular findings. The VA examiner noted that the Veteran was unemployed, but did not comment whether the disability affected employment. In March 2007, on VA examination, the Veteran stated that he did not experience any lower extremity symptoms, bladder or bowel symptoms, or erectile dysfunction. He did have numbness on a daily basis, but no paresthesia or unsteadiness. He did not have any incapacitating episodes. On examination, there was atrophy, guarding, tenderness, weakness, abnormal gait or spinal contour. There was no ankylosis. Forward flexion was 30 degrees with pain starting at the first degree and continuing to 30 degrees. Although he exhibited pain, weakness, fatigue, and lack of endurance, the signs did not reduce the range of motion even with repetition. There was no incoordination. There were no motor, sensory, or reflex abnormalities. The Veteran could walk on both his heels and toes, and tandem walk. A CT scan of the thoracic area was normal. The Veteran was not employed and he stated he could not work due to his back condition. In April 2012 on VA examination, the Veteran described pain from the mid back to the upper buttocks and down the back of his legs. He denied any numbness, tingling, or twitching. The Veteran stated that he had no problems with bowel or bladder incontinence. It was noted that the Veteran drove himself to the examination. The Veteran indicated that he did not use a back brace or any assistive devices. He stated that he did not have flare-ups that impacted function. On examination, forward flexion of the thoracolumbar spine was to 85 degrees. The range of motion after repetitive-use testing remained the same. There was no additional functional loss. There were no motor, sensory, or reflex abnormalities. The Veteran had no other signs of radiculopathy and that he had no other neurological abnormalities or findings. The VA examiner stated that the Veteran did not have intervertebral disc syndrome. The Veteran was able to heel, toe, and tandem walk with evidence of normal function and strength. An X-ray showed straightening of the lumbar lordosis and minor spurring at L3-L4. The VA examiner stated that the disability had no impact on the Veteran's ability to work. The VA examiner did note that the Veteran had not worked since 2009, and the jobs he did have he either was fired or quit after a few months. On VA neurological examination in April 2012, the Veteran complained of pain radiating to the lower extremities. He denied any numbness or tingling. He stated that he had no problems with bowel or bladder incontinence. There were no motor, sensory, or reflex abnormalities. The VA examiner stated that there was no evidence of a peripheral nerve involvement or neuropathy in the lower extremities. In statements in support of his claim, the Veteran stated that his disability affected him as a parent of two small children, because he cannot tend to their needs, and he could not do half the activities that other people his age could do. Analysis To the extent that the Veteran argues his disability picture more nearly approximates the criteria for a 50 percent rating, that is, unfavorable ankylosis, there is no evidence of: 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; or neurologic symptoms due to nerve root stretching. In the absence of evidence of unfavorable ankylosis of the lumbar spine on VA examinations or in any other medical evidence of record, the criterion for a higher rating under the General Rating Formula for Diseases and Injuries of the Spine based on orthopedic manifestations have not been met. In a similar manner, none of the difficulties the Veteran experiences approximate the disability picture of unfavorable ankylosis. He has normal posture and gait and there are no neurologic symptoms which might be similar to those when there is nerve root stretching. He has no symptoms other than those that are orthopedic in nature such as pain and limitation of motion and the symptoms are already accounted for in the current rating. Also, the disability has not resulted in objective neurological abnormalities such as neuropathy or radiculopathy or bladder or bowel dysfunction to warrant a separate rating for neurological abnormality. Also, in the absence any evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, the criteria for the next higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes have not been met. The Board has considered the application of other diagnostic codes in order to afford the Veteran a higher rating but does not find any raised by the record. As the preponderance of the evidence is against a rating higher than 40 percent for lumbar strain, 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 that 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 level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, 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 Veteran's current disability level and symptomatology to the Rating Schedule, the degree of disability is encompassed by the Rating Schedule and the assigned schedule rating is, therefore, adequate and no referral to an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1). In other words, the rating criteria reasonably describe the Veteran's disability of the lumbar spine and symptomatology under Diagnostic Codes 5237 and 5243, applying the criteria under the General Rating Formula for Diseases and Injuries of the Spine based on orthopedic or neurological abnormality and under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes and the rating factors under 38 C.F.R. §§ 4.40 and 4.45. ORDER A rating higher than 40 percent for lumbar strain is denied. REMAND In November 2011, the Board remanded the claim for a total disability rating for compensation based on individual unemployability on an extraschedular basis. While some development was done, it does not appear that the claim was adjudicated. Accordingly, the case is REMANDED for the following action: Adjudicate the claim for a total disability rating for compensation based on individual unemployability on an extraschedular basis under 38 C.F.R. § 4.16(b). If the 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 matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs