Citation Nr: 1324238	
Decision Date: 07/30/13    Archive Date: 08/07/13

DOCKET NO.  06-17 589A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan



THE ISSUE

Entitlement to an evaluation in excess of 40 percent for a lumbar strain.



REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

James A. DeFrank, Counsel




INTRODUCTION

The Veteran served on active duty from July 1965 to July 1968. 

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which, in relevant part, continued the 40 percent evaluation currently assigned for the Veteran's lumbar strain. 

The Board remanded the case for further development in July 2010.  That development was completed, and the case was returned to the Board for appellate review.  The Board subsequently issued a decision in September 2001, which in pertinent part, denied an evaluation in excess of 40 percent for the Veteran's lumbar strain.  

The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In a September 2012 Order, the Court vacated the portion of the September 2011 Board decision denying an evaluation in excess of 40 percent for a lumbar strain and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion).

The Board subsequently remanded the case again for further development in February 2013.  That development was completed, and the case has since been returned to the Board for appellate review.  

In September 2007, the Veteran withdrew his request for a hearing before the Board. See 38 C.F.R. § 20.704(e). 


FINDING OF FACT

The Veteran's lumbar strain has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine, incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician, or any separate neurological impairment other than left and right lower extremity neuropathy.


CONCLUSION OF LAW

The criteria for an evaluation in excess of 40 percent for a lumbar strain have not been met.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5237 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a)  and 38 C.F.R. § 3.159(b)  require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 

With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270   (Fed. Cir. 2009).  The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In this case, the RO provided the appellant a notice letter in January 2007, which informed of the evidence needed to substantiate his claim and of the division of responsibilities in obtaining the evidence.  The letter also explained how disability ratings and effective dates are determined.  After issuance of the January 2007 letter and an opportunity for the Veteran to respond, the case was readjudicated in a supplemental statement of the case (SSOC).  Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice.  See Mayfield, 20 Vet. App. at 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim on appeal.  The RO has either obtained, or made sufficient efforts to obtain, the treatment records identified by the Veteran.  

Additionally, the Veteran was afforded VA examinations in May 2005, September 2006, July 2010, and April 2013.  The Board finds these examination reports to be thorough and consistent with contemporaneous medical records and that the examiner reviewed the pertinent medical history.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as those providing sufficient detail so that the Board can perform a fully informed evaluation of the claim).  

Moreover, the April 2013 VA examination complies with directives of the Joint Motion and the Board's February 2013 remand.  As will be discussed in further detail below, the examiner addressed all of the necessary findings under the rating criteria and discussed whether the Veteran had any effects from flare-ups pursuant to the Court's holding in DeLuca v. Brown, 8 Vet. App. 202 (1995).

There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability 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. 

Thus, there is adequate medical evidence of record to make a determination in this case.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4).

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.   Moreover, the Veteran and his representative have not contended otherwise.
 

Laws and Analysis

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

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.  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.  38 C.F.R. § 4.7 (2012).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2012). 

The Veteran's entire history is reviewed when making a disability determination.  See 38 C.F.R. § 4.1 (2012).  But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

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 of these elements.  In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995).  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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.  Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45.  Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59.

Nonetheless, a higher rating is not assignable under a range of motion diagnostic code where pain does not cause a compensable functional loss.  This is because "pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss." Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011).
In this case, the Veteran is currently assigned a 40 percent evaluation for a lumbar strain pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237.  Diagnostic Code 5237 indicates that lumbosacral or cervical strain should be evaluated under the General Rating Formula for Disease and Injuries to the Spine. 

Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 40 percent evaluation is contemplated when there is 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 disability evaluation is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. 

Note 1 to this provision provides that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). 

Further, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is 0 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 range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 230 degrees.  The normal ranges of motions 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, General Rating Formula for Diseases and Injuries of the Spine, Note (2). See also 38 C.F.R. § 4.71a, Plate V. 

Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire 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 or cervical 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). 

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 40 percent disability evaluation is contemplated for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  A 60 percent rating is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 

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, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1).

In this case, the Veteran was afforded a VA examination in May 2005 during which he reported having daily back pain without flare-ups, moderate fatigue, severely decreased motion, moderate weakness, moderate stiffness, moderate spasm in the mid and low back, and back pain affecting his ability to drive.  He denied having any bowel or bladder problems, but he reported experiencing constant leg or foot weakness, weekly unsteadiness, and monthly numbness.  The Veteran indicated that he was able to walk about a quarter of a mile and used a cane for assistance.  On examination, there was no abnormal spinal curvature and no ankylosis.  There was also no objective evidence of spasm, atrophy, guarding, pain with motion, tenderness, or weakness of the sacrospinalis muscles of the thoracic or lumbar region.  Range of motion of the thoracolumbar spine included flexion from 0 to 40 degrees, with pain onset at 40 degrees; extension from 0 to 20 degrees, with pain onset at 20 degrees; bilateral lateral flexion from 0 to 30 degrees, without pain; and bilateral lateral rotation from 0 to 25 degrees, with pain onset at 20 degrees.  There was no additional loss of motion on repetitive use due to pain, fatigue, weakness, or lack of endurance.  The Veteran had normal muscle strength in all muscle groups bilaterally. His sensation to vibration, pinprick, light touch, as well as his position sense were also normal in the bilateral upper and lower extremities, as were his reflexes.  Contemporaneous x-rays showed minimal osteoarthritic changes of the thoracic spine and degenerative changes in the vertebrae and intervertebral disc spaces from L3 to S1.  The diagnosis was osteoarthritis of the thoracic and lumbar spine, which caused moderate effects on chores, shopping, exercise, sports, recreation, and traveling; mild effects on bathing and dressing; and no effects to feeding, toileting, and grooming.

In September 2006, the Veteran was afforded a VA examination in connection with his claim for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) claim.  At that time, the Veteran reported having pain in his lumbar spine across the level of his posterior superior iliac crest.  He indicated that he had increased pain with greater frequency since the last VA examination.  On examination, the Veteran had an antalgic gait.  His upper and lower extremity reflexes were normal, and there were no abnormal spinal curvatures.  It was noted that his back disability resulted in severe effects to sports activities; moderate effects to chores, shopping, exercise, recreation, and traveling; mild effects to bathing, dressing, toileting, grooming, and driving; and no effects to feeding.  The examiner indicated that the Veteran's back disability would restrict his ability to stoop, kneel, twist, turn, or lift more than 25 pounds.  In addition, he would be limited in his ability to sit, stand, or walk for an extended period of time.

VA treatment records dated thereafter indicate intermittent treatment for low back pain.

The Veteran was afforded another VA examination in July 2010 at which time he reported having current soreness in his back.  The back pain made pushing the lawnmower painful and prevented him from using a chainsaw and riding a motorcycle.  The Veteran indicated that he had severe flare-ups of pain twice per week lasting two to three days, which were precipitated by pushing the lawnmower, using a chain saw, prolonged standing, and lifting off the floor.  He denied having any bowel or bladder problems, but he did report having leg or foot weakness and unsteadiness.  He also reported experiencing fatigue, decreased motion, stiffness, weakness, spasm, and lumbar pain.  The examiner noted that there were no incapacitating episodes due to the spine disability.  The Veteran's gait was slow with a slightly wide base.  On examination, there was no abnormal spinal curvature and no ankylosis.  There was also no objective evidence of spasm, atrophy, tenderness, or weakness of the sacrospinalis muscles of the thoracolumbar region, but there was guarding and pain with motion.  Range of motion of the thoracolumbar spine included flexion from 0 to 54 degrees; extension from 0 to 25 degrees; left lateral flexion from 0 to 16 degrees; right lateral flexion from 0 to 20 degrees; left lateral rotation from 0 to 20 degrees; and right lateral rotation from 0 to 30 degrees.  There was no additional loss of motion on repetitive use due to pain, fatigue, weakness, or lack of endurance, nor was there objective evidence of pain following repetitive motion.  The Veteran had normal muscle strength in all muscle groups bilaterally, except for slightly decreased strength in right hip extension and flexion and right knee extension.  The Veteran also had normal muscle tone, and there was no evidence of atrophy.  His sensation to vibration, pinprick, light touch, and position sense was normal in the bilateral upper and lower extremities, except for polyneuropathy, as evidenced by the absence of vibratory sensation in the bilateral toes and decreased sensitivity in the bilateral ankles, as well as decreased sensitivity to pinprick in the right lower extremity.  The Veteran's reflexes were normal in the bilateral lower extremities. Contemporaneous x-rays showed degenerative changes.  The diagnosis was degenerative changes to the lumbar spine, which caused moderate effects to chores, shopping, exercise, sports, and traveling and mild effects to bathing and dressing.

In accordance with the February 2013 Board remand directives, the Veteran was provided another VA examination in April 2013 at which time the examiner noted that the Veteran had a diagnosis of a low back strain.  The Veteran did not report having flare-ups that impacted the function of his thoracolumbar spine (back).  On examination, forward flexion was from 0 to 10 degrees with no objective evidence of painful motion, and extension was from 0 to 5 degrees with no objective evidence of painful motion.  Bilateral lateral flexion and bilateral lateral rotation were all from 0 to 5 degrees with no objective evidence of painful motion.  The examiner noted that, while the range of motion testing was objective, it was under the subjective control of the Veteran who was able to get on and off the examination table without assistance.  He was also able to forward flex to 80 degrees, as well as put on his shoes and get dressed without difficulty.  His subjective control of his range of motion of the lumbar spine was not substantiated by the objective clinical findings.  In other words, there was a discrepancy in the range of motion of the lumbar spine between when the Veteran's range of motion was being measured by a goniometer and when he was observed getting on and off the examination table and outing on his shoes.  After repetitive testing, the Veteran was still able to forward flexion from 0 to 10 degrees, and he had extension, bilateral flexion and bilateral lateral rotation all from 0 to 5 degrees.  The examiner indicated that the Veteran did not have additional functional limitation in range of motion after repetitive use testing, although he did have functional loss and/or functional impairment of the thoracolumbar spine, as he had less movement than normal.  He did not have localized tenderness or pain to palpitation for joint/and or soft tissue of the thoracolumbar spine.  His hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension were all 5/5.  There was no muscle atrophy.  A sensory examination was normal, and the straight leg raising tests were normal.  The Veteran had no radicular pain or any other signs or symptoms due to radiculopathy.  He did not have any other neurologic abnormalities or findings related to a thoracolumbar spine disability, such as bowel or bladder problems or pathologic reflexes.  He also did not have intervertebral disc syndrome of the thoracolumbar spine.  The Veteran regularly used a cane for prolonged standing and ambulation.  Arthritis was documented, but there was no vertebral fracture and no other significant diagnostic tests or results.  His thoracolumbar spine disability did not impact his ability to work.  

Upon review of all relevant evidence of record, the Board finds that the disability picture associated with the Veteran's low back disability does not meet or more nearly approximate the criteria for an evaluation greater than 40 percent at any point in time.  

The Board notes that in order to assign a higher rating in excess of 40 percent based on limitation of motion, the record must establish that ankylosis is present.  In this regard, the evidence simply does not show any ankylosis of the lumbar spine.  VA examiners have specifically indicated that he does not have ankylosis.  Moreover, the aforementioned range of motion findings do not demonstrate that the joint was immobile or fixed in place.  The Board notes that ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990).  As the Veteran has not been noted to have ankylosis of the spine at any time, the Board finds that a rating in excess of 40 percent is not warranted.

In addition, the evidence of record does not show the Veteran to have incapacitating episodes with a total duration of at least six weeks during the past 12 months.  As previously noted, an incapacitating episode 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.  In this case, there is no evidence showing that the Veteran had been prescribed bedrest as required by the regulation.  The April 2013 VA examiner also specifically state that the Veteran did not have intervertebral disc syndrome.  

In short, the medical evidence simply does not indicate the Veteran's spine is ankylosed (frozen) or that his low back disability causes incapacitating episodes amounting to at least six weeks per year.  Indeed, while the Veteran has reported multiple periods where his back pain would require him to lie down for extended periods of time up to several days, such bed rest appears to have been self-imposed, and there is no evidence or suggestion that a physician prescribed bed rest at any time during the appellate time period.  Thus, even assuming a diagnosis of intervertebral disc syndrome, the Veteran has not incurred incapacitating episodes of at least six weeks in the previous year sufficient to warrant a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

After reviewing the record, the Board further finds that a separate disability rating is not warranted because the objective medical evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from his service-connected back disability.  Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

The Veteran has already been granted separate 10 percent ratings for neuropathy in both his left and right extremities under Diagnostic Code 8520 for the right and left lower extremities.  The September 2012 Joint Motion specifically noted that it should not disturb the favorable ruling regarding the separate ratings for neurological manifestations.  Additionally, on the most recent VA examination in April 2013, the examiner found that the Veteran's sensory examination was normal, and he had no radicular pain or any other signs or symptoms due to radiculopathy.

As previously indicated, Note 1 of the General Rating Formula for Diseases and Injuries of the Spine also provides for evaluating any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate Diagnostic Code.  In this case, however, the Veteran has consistently denied having any bowel or bladder problems, as well as problems with erectile dysfunction.  While the Veteran and his friends have provided statements indicating that his back problems have affected his ability to use the bathroom during the night, these statements clearly relate to the pain caused by getting out of bed, rather than any bladder impairment.  The Veteran's current 40 percent rating contemplates painful motion, and a separate rating for bowel or bladder impairment is not warranted.

The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca.  However, an increased evaluation for the Veteran's service-connected back disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 40 percent rating, and no higher.  In this regard, some of the VA examiners found objective evidence of pain on range of motion; however, they did not find additional limitation of motion after multiple repetitions of range of motion.  

The VA examination reports have also noted that the Veteran's back problems resulted in mild to moderate problems with daily activities.  In addition, there are multiple statements of record from the Veteran, his daughter, and others indicating that the effects on the Veteran's daily activities are severe due to pain, weakness, and fatigability.  Nevertheless, overall, the treatment records throughout the appellate process indicate generally stable back pain controlled by medication, and multiple examinations show normal muscle tone with no evidence of muscle atrophy.  In addition, the multiple VA examiners noted no objective evidence of spasm, tenderness, atrophy, or weakness.  In essence, the Veteran's restricted activities appear to be mainly due to painful motion, which is contemplated in the current 40 percent rating.  Indeed, the current 40 percent rating is for favorable ankylosis of the entire thoracolumbar spine or for forward flexion of less than 30 degrees.  As the Veteran does not have favorable ankylosis of the entire thoracolumbar spine and has flexion of considerably more than 30 degrees with no decrease of motion on repetition, the current 40 percent rating clearly contemplates and encompasses the Veteran's degree of functional loss.

The Board also notes that the September 2012 Joint Motion determined that VA had failed to comply with the duty to assist the Veteran in substantiating his claim because the record contained evidence that the Veteran's lumbosacral strain worsened with flare-ups.  The Veteran had previously reported periods of flare-ups requiring him to lie down in the previous year.  Specifically, during the July 2010 VA examination, the Veteran was noted to have flare-ups of pain twice weekly, which lasted two to three days.  The examiner also noted that the Veteran had to "find one spot and lay still and hope it is the right spot," presumably to alleviate back pain.   

In an attempt to comply with the September 2012 Joint Remand, the Board remanded the case in February 2013 to have an examiner specifically address the extent of limitation of motion or other functional limitations due to flare-ups.

However, during the VA examination in April 2013, the examiner specifically noted that the Veteran did not report having flare-ups that impacted the function of his thoracolumbar spine (back).  Additionally, the April 2013 VA examiner remarked that there was a discrepancy in the range of motion testing using the goniometer and the Veteran's range of motion observed as he was getting on and off the examination table and putting on his shoes.  Thus, the Veteran's statements regarding flare-ups are inconsistent, as has been his demonstrated range of motion. In addition, the Veteran once again did not have additional functional limitation in his range of motion after repetitive use testing.  

Moreoever, from the record, there is no evidence or allegation that the Veteran's previously reported flare-ups actually resulted in an ankylosed spine.  While the Veteran also reported having to lie down during these flare-ups, there is again no indication of physician prescribed bed rest.  Therefore, even if the additional limitation of motion during such flare-ups were extreme, the Board finds that the overall impairment resulting from his back disability would still more closely approximate no more than a 40 percent rating under the rating criteria.

With no evidence that the Veteran meets the criteria for an increased evaluation based on limitation of motion, even considering subjective symptoms such as pain, the Board concludes that the preponderance of the evidence is against assigning an evaluation in excess of 40 percent

In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1).  However, in this case, the Board finds that the record does not show that the Veteran's spine disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). 

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008).  In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms""(which include marked interference with employment and frequent periods of hospitalization). 

The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, which primarily consist of pain and limitation of motion.  As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's disability is not productive of such manifestations.  As such, it cannot be said that the available schedular evaluation for the disability is inadequate. 

Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected lumbar strain under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008).

ORDER

Entitlement to an evaluation in excess of 40 percent for a lumbar strain is denied.



____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs