Citation Nr: 1323657	
Decision Date: 07/24/13    Archive Date: 08/01/13

DOCKET NO.  12-05 612	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to an initial disability rating in excess of 10 percent for a low back disability, status post lumbar laminectomy, for accrued benefits purposes.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Appellant and her daughter



ATTORNEY FOR THE BOARD

M. Moore, Associate Counsel


INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  See 38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran served on active duty from October 1956 to November 1960.  The appellant is the Veteran's surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which granted service connection for a lower back disorder, status post lumbar laminectomy, assigning a 10 percent evaluation effective April 17, 2003.  In June 2010 and July 2010, the appellant submitted notices of disagreement with the effective date and initial evaluation assigned.  She subsequently perfected her appeal in March 2012.

In July 2012, the appellant presented sworn testimony during a video conference hearing in Nashville, Tennessee, which was presided over by the undersigned Acting Veterans Law Judge.  A transcript of the hearing has been associated with the claims file.

In March 2013, the Board granted an earlier effective date of August 14, 1995, and remanded the appellant's claim of entitlement to an evaluation in excess of 10 percent to the Appeals Management Center (AMC) to readjudicate claim in light of the new effective date, including consideration of earlier rating criteria.  The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  See Stegall v. West, 11 Vet. App. 268 (1998).

A review of reflects that the AMC readjudicated the claim, considering all applicable regulatory changes, in a May 2013 supplemental statement of the case.  Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board.

An April 2013 report of contact indicates that the appellant wished to file a claim for Dependency and Indemnity Compensation (DIC) benefits.  Thus, the issue of entitlement to DIC has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  


FINDINGS OF FACT

1.  A claim of entitlement to service connection for a low back disability was pending at the time of the Veteran's death, and a claim for accrued benefits was received within one year after his death.

2.  Throughout the appeals period, the Veteran's service-connected low back disability, status post lumbar laminectomy, was manifested by moderate symptoms of pain and limitation of motion, with no evidence of ankylosis or incapacitating episodes or more than slight neuropathy or radiculopathy.




CONCLUSION OF LAW

The criteria for the assignment of an initial disability rating of 20 percent, but no higher, for a service-connected low back disability, status post lumbar laminectomy, have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  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 Veteran 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 Veteran).

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 Veteran.  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, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I. Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the appellant's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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.  Prior to the Board's adjudication of the appellant's accrued benefits claims, a letter dated in January 2008 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio at 187.

Although this letter was not sent prior to initial adjudication of the appellant's claim, this was not prejudicial to her.  After she received the adequate notice letter in January 2008, she was provided an opportunity to respond with additional argument and evidence and the claim was readjudicated in an April 2008 statement of the case and a May 2013 supplemental statement of the case.  See Prickett v. Nicholson, 20 Vet. App. 370 (2006).  

The Board also concludes that VA's duty to assist has been satisfied.  The Veteran's service treatment records and VA and private treatment records are in the file.  As to any outstanding treatment records, as the evidence to be considered in accrued benefits claims is limited to that in the file at the time of death, there is no further duty to obtain any treatment records not already in the claims file.

Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim of entitlement to an increased rating for a low back disability.

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 Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II. Merits of the Claim

Periodic monetary benefits (other than insurance and servicemen's indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid for a period not to exceed two years, shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party.  See 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2012).  A claim for such benefits must be filed within one year of the Veteran's death.  See 38 C.F.R. § 3.1000(a), (c) (2012).

In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the Federal Circuit concluded that, for a surviving spouse to be entitled to accrued benefits, "the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision."  See also Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996) (a consequence of the derivative nature of the surviving spouse's entitlement to a veteran's accrued benefits claim is that, without the Veteran having a claim pending at time of death, the surviving spouse has no claim upon which to derive his or her own application).

The term "pending claim" means an application, formal or informal, which has not been finally adjudicated.  See 38 C.F.R. § 3.160(c) (2012).  The term "finally adjudicated claim" means an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier.  See 38 C.F.R. § 3.160(d) (2011); see also 38 C.F.R. §§ 20.1103, 20.1104 (2012).  "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death.  See 38 C.F.R. § 3.1000(d)(4) (2012); Hayes v. Brown, 4 Vet. App. 353 (1993).

With regard to the appellant's claim of entitlement to accrued benefits, the Board observes that, at the time of his death in February 2007, the Veteran had a pending petition to reopen a previously denied claim of entitlement to service connection for a low back disability.  Specifically, the Veteran's petition to reopen his claim for service connection for a low back disability had been remanded to the Board in an October 2006 joint motion for remand (JMR) and was pending readjudication by the Board in light of the October 2006 JMR and associated October 2006 Court Order.  In March 2007, unaware of the Veteran's death in February 2007, the Board reopened and remanded his claim for service connection for a low back disability.  The appellant filed a claim for accrued benefits in March 2007, within one year of the Veteran's February 2007 death.  The instant claim for an increased initial rating stems from the appellant's initial accrued benefits claim.  As such, the Board will consider whether the appellant is entitled to an initial disability evaluation in excess of 10 percent for the Veteran's low back disability for accrued benefits purposes based on the evidence of record at the time of the Veteran's February 2007 death.  See 38 C.F.R. § 3.1000 (2012).

The Veteran's low back disability was assigned a 10 percent evaluation under Diagnostic Code 5003 and previously under Diagnostic Code 5293 for accrued benefits purposes.  The appellant seeks a higher initial rating for accrued benefits purposes.

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7 (2012).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  See 38 C.F.R. § 4.3 (2012).  ).  In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  See 38 C.F.R. § 4.31 (2012).

The Veteran's entire history is reviewed when making a disability determination.  See 38 C.F.R. § 4.1 (2012).  Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal.  See Fenderson v. West, 12 Vet. App. 119 (1999).

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  See 38 C.F.R. § 4.14 (2012).  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).  

During the pendency of this appeal, VA twice amended the rating schedule for evaluating disabilities of the spine under 38 C.F.R. § 4.71a.  The first amendment, which pertained to the evaluation of intervertebral disc syndrome under Diagnostic Code 5293, became effective on September 23, 2002.  See 67 Fed. Reg. 54,345, 54,349 (Aug. 22, 2002).  The most recent revisions, codified in Diagnostic Codes 5235 through 5243, became effective on September 26, 2003.  See 61 Fed. Reg. 51,457; 68 Fed. Reg. 51,458 (Aug. 27, 2003); see also 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2010).  The new criteria include a revision of 38 C.F.R. § 4.71a, to include Plate V, Range of Motion of Cervical and Thoracolumbar Spine.  

In Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003), the Federal Circuit overruled Karnas v. Derwinski, 1 Vet. App. 308 (1991), to the extent that it conflicts with the precedents of the United States Supreme Court and the Federal Circuit.  According to General Counsel Opinion VAOPGCPREC 7-2003, Karnas is inconsistent with the United States Supreme Court and Federal Circuit precedent insofar as it provides that, when a statute or regulation changes while a claim is pending before VA or a court, whichever version of the statute or regulation is most favorable to the claimant will govern unless the statute or regulation clearly specifies otherwise.  

However, neither of the above cases nor the General Counsel Opinion prohibits the application of a prior regulation to the period on or after the effective date of a new regulation.  Thus, the rule that a veteran is entitled to the most favorable of the versions of a regulation that was revised during his appeal allows application of the prior versions of the applicable diagnostic codes at 38 C.F.R. § 4.71a to the period on or after the effective dates of the new regulations.

Under the old regulations, applicable prior to September 26, 2003, Diagnostic Code 5293 pertained to intervertebral disc syndrome and assigned a 10 percent evaluation for mild symptoms.  A 20 percent evaluation was assigned for moderate symptoms with recurring attacks.  A 40 percent evaluation was assigned for severe, recurring attacks with intermittent relief.  A 60 percent evaluation was assigned for pronounced, persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc with little intermittent relief.  See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002).

Diagnostic Code 5292 assigned a 10 percent evaluation for slight limitation of motion of the lumbar spine.  A 20 percent evaluation was assigned for moderate limitation of motion of the lumbar spine.  A maximum 40 percent evaluation was assigned for severe limitation of motion of the lumbar spine.  See 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002).

Diagnostic Codes 5294 and 5295 assigned a 10 percent evaluation for sacro-iliac injury and weakness or lumbosacral strain with characteristic pain on motion.  A 20 percent evaluation was assigned for sacro-iliac injury and weakness or lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position.  A 40 percent evaluation was assigned for severe sacro-iliac injury and weakness or lumbosacral strain with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5294-5295 (2002).  

The Board notes that words such as "pronounced," "severe," "moderate," "mild," and "slight" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just.  See 38 C.F.R. § 4.6 (2012).  Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue.  Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating.  See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2012).

Effective September 23, 2002, the revised criteria for Diagnostic Code 5293 evaluate intervertebral disc syndrome (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation.  When rating based on incapacitating episodes, a 10 percent evaluation is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  A 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  A 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  A 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective as of September 23, 2002).

Note (1) provides that for purposes of evaluations under 5293, 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.  "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so.  Note (2) provides that when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes.  Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes.  Note (3) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment.  See 38 C.F.R. § 4.71a, Diagnostic Code 5293, Notes (1)-(3) (effective as of September 23, 2002).

Effective September 26, 2003, the schedule for rating spine disabilities was changed to provide for the evaluation of all spine disabilities under a new General Rating Formula for Diseases and Injuries of the Spine, unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (renumbered as Diagnostic Code 5243).  Diagnostic codes for all diseases and injuries to the spine were renumbered.

Under the current General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is assigned 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 contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent evaluation is assigned 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, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, 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 30 percent evaluation is assigned for forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  A 40 percent evaluation is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2012).

Any associated objective neurological abnormalities, including but not limited to bowel or bladder impairment, are evaluated separately under an appropriate diagnostic code.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (1) (2012).

For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees.  Normal forward flexion of the lumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (2) (2012); see also 38 C.F.R. § 4.71a, Plate V (2012).  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.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (2) (2012).  The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (2) (2012); see also 38 C.F.R. § 4.71a, Plate V (2012).  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.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (2) (2012).

Under the renumbered Diagnostic Code 5243, intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides the same rating criteria as those for rating intervertebral disc syndrome based on incapacitating episodes under Diagnostic Code 5293.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012); see also 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective as of September 23, 2002).

For purposes of evaluations under 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.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1) (2012).  If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (2) (2012).

Diagnostic Code 5003 provides the rating criteria for degenerative arthritis.  Degenerative arthritis established by x-ray findings are rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When however, the limitation of the specific joint or joints involved in noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, a 10 percent evaluation is assigned for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is assigned for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations.  See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012).  The 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion.  See 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note (1) (2012).

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination.

Where arthritis results in painful motion of the joint, the rating criteria allow for at least the minimum compensable evaluation for the joint.  See 38 C.F.R. § 4.59 (2012).

The Veteran did not undergo a VA examination to evaluate his low back disability in conjunction with the service connection claim that was pending at the time of his death.  As such, the medical evidence is limited to the VA and private treatment records in the claims file at the time of his February 2007 death.  These treatment records note the Veteran's complaints of low back and left leg pain, which he generally rated as 4 to 7 out of 10, and limited mobility, his diagnosis of spondylosis, and observations of abnormal gait and use of a cane and wheelchair.  See VA treatment records, March 2004, October 2004, January 2005, February 2005, June 2005, November 2005, April 2006.  They also indicate that he received pain medication and epidural injections for his low back.  See VA treatment records, October 2005.  Although two VA treatment records note limited range of motion or restricted movement, there are no specific range of motion measurements, or findings of ankylosis, physician-prescribed bed rest and treatment for incapacitating episodes, or bowel or bladder impairment.  See VA treatment records, January 2005, April 2005.  The VA treatment records also seem to suggest that the Veteran may have had very mild peripheral neuropathy of the left lower extremity.  See VA treatment records, June 2004, October 2004, January 2005, April 2006.  However, a December 2004 EMG test noted this was not L5-S1 radiculopathy.  See VA treatment record, December 2004.  Further, a December 2006 private treatment record indicates that the Veteran's left-sided weakness was a result of a cerebrovascular accident.  

The claims file also includes lay evidence in the form of statements and hearing testimony from the appellant and her representative.  The lay evidence is generally consistent with the medical evidence of record, noting the Veteran's complaints of back, limited mobility, use of assistive devices, and left leg complaints.  Notably, at the July 2012 Board hearing, the appellant and her representative indicated that the Veteran could not bend over and had abnormal kyphosis.

Based on the medical evidence of record, the Board finds that the Veteran met the criteria for an initial disability rating of 20 percent but no higher for his service-connected low back disability prior to his death.  Under the Veteran's initially assigned Diagnostic Code 5293, a 20 percent evaluation is assigned for moderate symptoms with recurring attacks.  The Board finds that the totality of the evidence supports a finding of moderate symptomatology.  See 38 C.F.R. § 4.6 (2012).  The Veteran's use of assistive walking devices, limited range of motion, and complaints of pain ranging on average from 4 to 7 out of 10 reflect a level of symptomatology more severe than "slight," as required for a 10 percent evaluation.  As noted above, the Board may apply these more favorable rating criteria for the entire period on appeal.  See Kuzma, supra.  

However, although the Board finds that an increased initial rating of 20 percent is warranted, a rating in excess of 20 percent is not warranted at any time throughout the appeals period.  In order to receive a higher rating of 40 percent under his initially assigned Diagnostic Code 5293, the medical evidence would have to demonstrate severe symptoms with recurrent attacks and only intermittent relief.  In this case, the evidence does not support such a level of severity.  The Veteran himself indicated that his low back pain was only intermittent, not recurring with only intermittent relief.  See VA treatment record, June 2005.  Further, his complaints of pain ranging from 0 out of 10 on a "good day" to 10 out of 10 only on a "bad day," and generally averaging between 4 and 7 out of 10 does not reflect severe symptomatology.  See VA treatment records, March 2004, January 2005, June 2005.

The Board has also reviewed the various diagnostic codes and rating criteria applicable during the appeals period and finds that the Veteran's low back disability cannot be given a higher rating under any of these criteria.  Notably, the medical evidence does not demonstrate severe limitation of motion or severe sacro-iliac injury and weakness or lumbosacral strain to receive an initial evaluation in excess of 20 percent under the old regulations.  Additionally, there is no evidence of forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable or unfavorable ankylosis of the thoracolumbar or entire spine to warrant a higher evaluation under the General Rating Formula for Diseases and Injuries of the Spine from September 26, 2003, to the Veteran's death.  With regard to applying the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the Board notes that there is no indication in the medical evidence of record that the Veteran experienced any incapacitating episodes as defined in VA regulations for his low back disability.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1) (2012).  Although the treatment records note his complaints of low back pain with radiation to the left lower extremity, there is no evidence that the Veteran suffered from episodes requiring physician-prescribed bed rest to qualify as incapacitating episodes for VA purposes, nor does the appellant claim such.  Thus, an increased rating cannot be assigned under these criteria.

The Board also notes that, according to Note (1), any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, must be evaluated separately under the appropriate diagnostic code.  The Board notes the diagnoses of peripheral neuropathy of the left lower extremity in the claims file.  However, none of these diagnoses has been definitively linked to the Veteran's low back disability by objective testing.  Significantly, EMG testing performed found no evidence of left L5-S1 radiculopathy.  See VA treatment record, December 2004.  Further, even if the Veteran were to accept that the Veteran had left lower extremity neuropathy related to his low back disability, there is no evidence that this is more than slight.  The treatment records describe it as "very mild" or "quite mild."  As such a separate compensable evaluation is not appropriate for any neurologic abnormalities.

With respect to the possibility of assigning a higher disability rating according to 38 C.F.R. § 4.40 and 4.45 for the Veteran's low back disability, the Board has considered the Veteran's complaints of pain in assigning the increased rating of 20 percent, despite the lack of objective range of motion measurements to support such an increase.  As such, the Board finds that additional compensation need not be assigned for the Veteran's low back disability under 38 C.F.R. §§ 4.40 or 4.45.  See also DeLuca, supra.

Additionally, the Board notes that there is no indication in the medical evidence of record that the Veteran's symptomatology warranted other than the currently assigned 20 percent initial disability rating throughout the appeal period.  As such, assignment of staged ratings is not warranted.  See Fenderson, supra.

The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with the Veteran's 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) (2011); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, as a threshold issue, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule.  If so, the rating schedule is adequate and an extraschedular referral is not necessary.  If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  These include marked interference with employment and frequent periods of hospitalization.  Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating.

With regard to the Veteran's service-connected low back disability, the evidence of record does not reflect that the Veteran's disability picture was so exceptional as to not be contemplated by the rating schedule.  There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria.  The rating criteria for the Veteran's 20 percent disability rating under Diagnostic Code 5293 contemplated his level of symptomatology.  Specifically, the criteria account for any moderate symptoms.  To this end, the Board considered his complaints of pain and limited motion and mobility.  Complaints of limited range of motion due to pain and functional limitation are also adequately contemplated by the rating schedule.  Notably, 38 C.F.R. §§ 4.40 and 4.45 adequately consider any functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of the joint.  As the Veteran's disability picture was contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary.

In short, the evidence does not support the proposition that the Veteran's service-connected disability presented such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2011).  Thus, referral of this issue to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted.

For all of the foregoing reasons, the Board finds that an increased initial rating of 20 percent, but no higher, is appropriate for the entire appeals period for the Veteran's low back disability, status post lumbar laminectomy, for accrued benefits purposes.  In reaching this conclusion, the Board has applied the benefit-of-the-doubt doctrine.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012); Gilbert, supra.





ORDER

Entitlement to an disability rating of 20 percent, but no higher, for a low back disability, status post lumbar laminectomy, for accrued benefits purposes, is granted for the entire period on appeal, subject to the laws and regulations governing the award of monetary benefits.




____________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs