Citation Nr: 1324550	
Decision Date: 08/01/13    Archive Date: 08/13/13

DOCKET NO.  10-04 266	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to a higher initial rating for degenerative joint disease of the lumbar spine, rated noncompensable from November 4, 2008 through July 25, 2011 and 10 percent disabling since July 26, 2011.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. Elwood, Associate Counsel
	INTRODUCTION	

The Veteran served on active duty from August 1974 to August 1978 and from February 1986 to February 2003.  He received the Army Commendation Medal.

This matter initially came before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Waco, Texas.  In that decision, the RO granted service connection for degenerative joint disease of the lumbar spine and assigned an initial noncompensable disability rating, effective November 4, 2008.

In January 2012, the RO assigned an initial 10 percent disability rating for degenerative joint disease of the lumbar spine, effective July 26, 2011.

The Veteran testified before the undersigned at a February 2013 videoconference hearing.  A transcript of that hearing has been associated with his claims folder.

In May 2013, the Board remanded this matter for further development.

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  The documents in this file have been reviewed and considered as part of this appeal.


FINDINGS OF FACT

1.  From November 4, 2008 through July 25, 2011, the Veteran's degenerative joint disease of the lumbar spine was manifested by pain; there was no reported limitation of spinal motion or painful spinal motion and no additional loss of motion due to such factors as pain, weakness, lack of endurance, fatigability, or flare ups; there was no spinal ankylosis, muscle spasms, guarding, localized tenderness, abnormal gait, abnormal spinal contour, vertebral body fracture, or incapacitating episodes of intervertebral disc syndrome (IVDS) requiring bed rest prescribed by a physician and treatment by a physician.
2.  Since July 26, 2011, the Veteran's degenerative joint disease of the lumbar spine has been manifested by pain, stiffness, tenderness, muscle spasms, guarding, and painful motion; thoracolumbar spinal flexion has been to between 70 and 90 degrees, extension has been to between 25 and 30 or greater degrees, right and left lateral flexion has been to between 28 and 30 or greater degrees, and right and left lateral rotation has been to 30 degrees or greater, with no additional loss of motion due to such factors as pain, weakness, lack of endurance, fatigability, or flare ups; there has been no spinal ankylosis, abnormal gait, abnormal spinal contour, or incapacitating episodes of IVDS requiring bed rest prescribed by a physician and treatment by a physician.


CONCLUSION OF LAW

The criteria for an initial compensable rating, from November 4, 2008 through July 25, 2011, and an initial rating higher than 10 percent, since July 26, 2011, for degenerative joint disease of the lumbar spine have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5242, 5243 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

The appeal for a higher initial rating for degenerative joint disease of the lumbar spine arises from the Veteran's disagreement with the initial rating assigned after the grant of service connection.  The courts have held, and VA's General Counsel has agreed, that where an underlying claim of service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003).

The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as initial rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105.  Goodwin v. Peake, 22 Vet. App. 128 (2008).

Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements.  Id.  There has been no allegation of such error in this case.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).

The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2012) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam).

At the Veteran's February 2013 hearing, the undersigned identified the issue on appeal and asked the Veteran about the symptoms and history of his low back disability as well as the treatment received for the disability to ensure that all relevant treatment records had been obtained.  Further, the Veteran provided testimony as to the symptoms and history of his low back disability and the treatment provided for the disability, thereby demonstrating actual knowledge of the ability to identify and submit additional relevant evidence.  Also, the Board subsequently remanded the issue on appeal to obtain additional evidence (e.g. VA treatment records) suggested by the hearing testimony.  The duties imposed by Bryant were thereby met.

VA obtained the Veteran's service treatment records, relevant service personnel records, and all of the identified relevant post-service VA treatment records.  In addition, the Veteran was afforded VA examinations to assess the severity of his service-connected low back disability.

The Veteran submitted a signed and completed "Authorization and Consent to Release Information" form (VA Form 21-4142) for records from Dr. Haz Boun in El Paso, Texas.  However, during the February 2013 hearing he reported that he had never received any treatment for his back disability from Dr. Haz Boun and that any records from that physician would not be relevant to his increased rating claim.  He has not reported, and the evidence does not otherwise reflect, any other relevant post-service private medical treatment for a back disability.

In its May 2013 remand, the Board instructed the agency of original jurisdiction (AOJ) to obtain all relevant VA treatment records from the El Paso VA Health Care System dated since June 2012 and to schedule the Veteran for a VA examination to assess the severity of his service-connected low back disability.  As explained above, all relevant VA treatment records have been obtained and associated with the claims file (including relevant records from the El Paso VA Health Care System dated since June 2012).  Additionally, a VA examination was conducted in May 2013 to assess the severity of the Veteran's service-connected low back disability.  This examination was thorough, contained all pertinent findings, and was responsive to the questions posed by the Board.  Accordingly, the AOJ substantially complied with all of the Board's May 2013 remand instructions and VA has no further duty to obtain any additional records or conduct additional examinations with respect to the claim being decided herein.  See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).

Analysis

Disability evaluations are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155. 

Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999).  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 required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21.

The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment.  The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare ups.  Such inquiry is not to be limited to muscles or nerves.  These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare ups, or pain.  The examiner should also determine the point, if any, at which such factors cause functional impairment.  Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59.

The Veteran's degenerative joint disease of the lumbar spine is currently rated under 38 C.F.R. § 4.71a, DCs 5003-5242.  Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned.  38 C.F.R. § 4.27 (2012).  Here, the use of DCs 5003-5242 reflects that the Veteran's low back disability is rated as degenerative arthritis of the lumbar spine under DC 5003 and that the initial ratings assigned are based on limitation of spinal motion under DC 5242, which pertains to degenerative arthritis of the spine.

Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved.  If the limitation of motion is noncompensable, 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 DC 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 20 percent rating is warranted for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  A 10 percent rating is warranted for X-ray evidence of involvement of two or more major joints or two or more minor joint groups.  38 C.F.R. § 4.71a, DC 5003.

For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints.  Multiple involvements of the interphalangeal, metacarpal, and carpal joints of the upper extremities, the interphalangeal, metatarsal, and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with the major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions.  38 C.F.R. § 4.45(f).

Under the applicable criteria, a lumbosacral strain is rated under the general rating formula for rating diseases and injuries of the spine.  38 C.F.R. § 4.71a, DC 5242. Under the general rating formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply: a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, combined range of motion of the entire thoracolumbar spine greater than 120 degrees, but not greater than 235 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 rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; a 40 percent rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for ankylosis of the entire spine.  Id.

Note 2 provides that normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  Each range of motion measurement is to be rounded to the nearest five degrees. 

In this case, the Veteran's friend reported in a December 2008 letter that the Veteran experienced back pain.  His back problems prevented him from doing any heavy lifting.

During a February 2009 VA examination, the Veteran reported that he experienced low back pain, but that his back disability was stable and that he was not receiving any treatment for the disability.  There was no history of any hospitalization, surgery, trauma to the spine, neoplasm, fatigue, decreased motion, stiffness, weakness, spasms, or flare ups.  Also, he had not experienced any incapacitating episodes of spine disease, he did not use any assistive devices or aids, and his ability to walk was not limited.

Examination revealed that the Veteran's posture, head position, and gait were all normal and that there was symmetry in appearance.  There were no abnormal spinal curvatures (including gibbus, kyphosis, list, lumbar flattening, lumbar lordosis, scoliosis, and reverse lordosis), there was no spinal ankylosis, and there was no muscle spasm, atrophy, guarding, pain with motion, tenderness, or weakness.  A neurologic examination revealed that motor strength associated with hip flexion and extension, knee extension, ankle dorsiflexion and plantar flexion, and great to extension were all normal (5/5) and that muscle tone was normal.  Sensation to vibration, pain (pinprick), light touch, and position sense were all normal (2/2) and knee and ankle jerk and plantar (Babinski) reflexes were all normal (2+).  Lasegue's sign was negative and vertebral fracture was not a claimed or service-connected condition.  The Veteran was diagnosed as having chronic low back pain with degenerative changes of the lumbar spine.  He was employed full time as a letter carrier with the Postal Service and his back disability did not have any significant effects on his employment.

A report of a VA examination dated on July 26, 2011 indicates that the Veteran reported that he experienced intermittent low back symptoms with periods of remission.  He used medication (i.e. ibuprofen) to treat his back symptoms and they were responsive to such treatment.  Flare ups of symptoms occurred on a weekly basis, were moderate in severity, lasted for 1 to 2 days at a time, were precipitated by bending and lifting, were alleviated with medication use, rest, and massages, and caused the Veteran to decrease his walking.  Also, he experienced decreased motion, stiffness, muscle spasms, and low back pain.  The pain occurred constantly on a daily basis, was located in the lumbosacral area, was moderate in severity, was nonradicular, and did not radiate.  However, there was no history of any hospitalization or surgery, spinal neoplasms, urinary incontinence, urinary urgency, urinary retention requiring catheterization, urinary frequency, nocturia, fecal incontinence, obstipation, erectile dysfunction, numbness, paresthesias, leg or foot weakness, falls, unsteadiness, fatigue, or weakness.  Also, there were no incapacitating episodes of spinal disease, the Veteran did not use any assistive devices or aids, and he was able to walk 1 to 3 miles.

Examination revealed that the Veteran's posture, head position, and gait were all normal and that there was symmetry in appearance.  There were no abnormal spinal curvatures (including gibbus, kyphosis, lumbar lordosis, lumbar flattening, reverse lordosis, list, and scoliosis) and there was no spinal ankylosis.  There was muscle spasm, guarding, pain with motion, and tenderness bilaterally, but there was no muscle atrophy or weakness.  Muscle spasm, localized tenderness, and guarding were not severe enough to be responsible for an abnormal gait or abnormal spinal contour.

The ranges of motion of the thoracolumbar spine were recorded as flexion to 70 degrees, extension to 25 degrees, left and right lateral flexion both to 28 degrees, and left and right lateral rotation both to 32 degrees.  There was objective evidence of pain following repetitive motion, but there were no additional limitations after 3  repetitions of range of motion.  Knee and ankle jerk and plantar (Babinski) reflexes were all normal (2+) bilaterally, motor strength associated with hip and knee flexion and extension, ankle dorsiflexion and plantar flexion, and great toe extension were all normal (5/5) bilaterally, muscle tone was normal, and there was no muscle atrophy.  Lasegue's sign was negative and Waddell's testing was 2/8.  X-rays revealed mild osteophytic changes consistent with mild degenerative changes.  A diagnosis of mild lumbosacral degenerative joint disease was provided.  The Veteran was employed full time as a postal carrier.  Although he experienced increased back pain and spasms due to lifting and bending at work, he had not lost any time from work during the previous 12 months and was able to perform all of his job duties.

VA treatment records dated from May to November 2012 include reports of chronic low back pain which was 4/10 in intensity.  The Veteran was fully ambulatory, walked without any assistive devices, and did not experience any abnormal sensation or balance problems.  Examinations revealed mild scoliosis at approximately 5 to 10 degrees (during a May 2012 VA primary care evaluation) and some pain on pressing at the T11-T12 level.  Regardless, spinal curvature was generally normal, there was no paraspinal muscle spasm, there were no neurologic signs of localization, tendon reflexes were normal, Romberg sign was negative, and there were no abnormal sensations or balance problems.  X-rays revealed minimal to moderate hypertrophic degenerative osteophytes (but particularly large osteophytes anteriorly at T9-T10), mild facet arthritis, and mild degenerative spondylosis.  However, there was no spondylolysis or spondylolisthesis, there was satisfactory alignment of the vertebral bodies, and the pedicles were intact.  Also, a bone density scan indicated that the mineral content of the lumbar spine was normal.  The Veteran was diagnosed as having degenerative joint disease and low back pain.

During the February 2013 hearing the Veteran reported that he experienced constant back pain, that he used over the counter medications to treat the pain, and that his symptoms were aggravated by prolonged sitting.  Also, he experienced difficulty bending, limited range of spinal motion, and muscle spasms which lasted from 5 to 30 minutes and prevented him from engaging in any activities.  He had not experienced any incapacitating episodes of back symptoms, had not been hospitalized due to his back disability, had not visited an emergency room due to his back disability in the years since service, and did not use any back brace or other assistive devices.  He was employed as a postal employee and although he was unable to lift anything over 30 to 40 pounds and experienced some other limitations due to pain, he was otherwise able to perform his job with medication use.  However, he would have been unable to perform his job without using medications.

A May 2013 VA examination report reveals that the Veteran reported lower back pain which had remained stable since his separation from service and was treated with over the counter medications (e.g. Aleve).  There were no flare ups of back symptoms.  He remained employed full time with the Postal Service and did not have any work restrictions.  The ranges of motion of the thoracolumbar spine were recorded as being forward flexion to 80 degrees and extension, right and left lateral flexion, and right and left lateral rotation all to 30 degrees or greater.  There was pain associated with left lateral flexion at 30 degrees or greater, but there was no objective evidence of painful motion associated with any of the other ranges of spinal motion.  Following 3 repetitive motions, forward flexion was to 90 degrees or greater and extension, right and left lateral flexion, and right and left lateral rotation were all to 30 degrees or greater.  There were no additional limitations in the ranges of spinal motion and no functional loss or functional impairment of the spine following repetitive use (including due to weakened movement, excess fatigability, incoordination, or pain on movement).

Examination further revealed that there was no localized tenderness or pain to palpation of the joints and soft tissues of the thoracolumbar spine and no guarding or muscle spasm of the thoracolumbar spine.  Muscle strength associated with hip flexion, knee extension, ankle plantar flexion and dorsiflexion, and great toe extension was normal (5/5) bilaterally and there was no muscle atrophy.  Knee and ankle reflexes were normal (2+) bilaterally, sensation to the upper anterior thighs, thighs/knees, lower legs/ankles, and feet/toes was normal bilaterally and straight leg raising testing was negative bilaterally.  Overall, there was no radicular pain or any other signs or symptoms due to radiculopathy in either lower extremity.  Also, there were other no neurologic abnormalities or findings related to the thoracolumbar spine (e.g. bowel or bladder problems/pathologic reflexes), the Veteran did not have IVDS of the thoracolumbar spine, he did not use any assistive devices, the functional impairment of an extremity was not such that no effective function remained other than that which would be equally well served by an amputation with prosthesis, and he did not have any other pertinent physical findings, complications, conditions, signs, or symptoms.  X-rays revealed arthritis, but no vertebral fracture.  A diagnosis of a lower back strain with stable degenerative joint disease was provided.  The disability did not have any impact on the Veteran's ability to work.
The examiner who conducted the May 2013 VA examination reported that the Veteran was observed walking to the radiology department from the examiner's office and that he was able to keep up with the examiner at a good pace and did not have any gait, balance, or ambulation problems.  Overall, the examiner concluded that the examination of the Veteran's lower back was normal in that there were no limitations on his ranges of motion, flare ups, or tenderness to palpation of the spinal cord or involved muscular structures.  Also, the Veteran admitted that his lower back pain had not increased in the years since service and that he did not have any work restrictions.

The above evidence reflects that there is a low back disability with pain, stiffness, tenderness, and occasional muscle spasms, guarding, and painful motion.  During the period prior to July 26, 2011, the Veteran reported that he did not experience any decreased spinal motion, fatigue, or weakness, and there is no objective evidence to the contrary.  For example, there was no pain with motion or weakness observed during the February 2009 VA examination.  Also, flare ups were not reported during this period.  Moreover, the Veteran exhibited a normal gait and posture, there were no abnormal spinal curvatures, and there was no evidence of any guarding, muscle spasms, or localized tenderness.  Thus, even considering pain and other functional factors, the Veteran's low back symptoms were not shown to be so disabling to actually or effectively result in limitation of forward flexion to greater than 60 degrees, but not greater than 85 degrees, limitation of the combined range of motion of the thoracolumbar spine to greater than 120 degrees, but not greater than 235 degrees, or any muscle spasm, guarding, or localized tenderness. Also, there is no evidence of any vertebral body fracture during this period.  As the requirements for a 10 percent rating under DC 5242 were not met during the period prior to July 26, 2011, an initial compensable rating under that diagnostic code is not warranted at any time during that period.  See 38 C.F.R. § 4.71a, DC 5242.  

Moreover, an initial compensable rating under DC 5003 is not warranted prior to July 26, 2011 because there was no evidence of any limitation of spinal motion during that period or any symptoms indicative of limitation of motion (e.g. swelling, muscle spasm, or painful motion).  Also, there was no evidence of X-ray involvement of 2 or more minor joint groups involving the spine (i.e. 2 or more of the following: the dorsal vertebrae, the lumbar vertebrae, the lumbosacral articulation, and the sacroiliac joints).  See 38 C.F.R. §§ 4.45(f), 4.71a, DC 5003.

With respect to the period since July 26, 2011, the Veteran has been able to perform thoracolumbar spinal flexion to between 70 and 90 degrees, extension to between 25 and 30 or greater degrees, right and left lateral flexion to between 28 and 30 or greater degrees, and right and left lateral rotation to 30 or greater degrees.  The ranges of motion remained the same following repetitive use during the May 2013 VA examination (and actually increased from 80 to 90 degrees in the case of forward flexion).  There was pain with motion and following repetitive motion during the July 2011 VA examination and pain at 30 degrees or greater of left lateral flexion during the May 2013 VA examination.  However, there was no objective evidence of pain associated with any range of spinal motion other than left lateral flexion during the May 2013 VA examination.  

The examiner who conducted the July 2011 VA examination reported that there were no additional limitations following repetitive use of the spine, but the examiner did not specifically report whether there was any functional impairment due to such factors as weakened movement, excess fatigability, incoordination, flare ups, or pain.  Cf. Mitchell, 25 Vet. App. at 43-4.  However, this deficiency was corrected in the May 2013 VA examination report in that the examiner who conducted that examination specifically reported that there were no additional limitations in the range of motion of the thoracolumbar spine following repetitive use and no functional loss and/or functional impairment of the thoracolumbar spine (including due to weakened movement, excess fatigability, incoordination, or pain on movement).  The Veteran did not report any flare ups during the May 2013 VA examination.

Furthermore, although there was objective evidence of muscle spasm and guarding during the July 2011 VA examination, such symptoms were not severe enough to result in an abnormal gait or abnormal spinal contour, as the Veteran had both a normal gait and normal spinal contour.  The Board acknowledges that mild scoliosis was found during the May 2012 VA primary care evaluation.  However, such scoliosis was not found to be due to any muscle spasm or guarding at that time and   there was no evidence of any muscle spasm or guarding during the May 2013 VA examination.

Therefore, even considering pain and other functional factors, the Veteran's low back symptoms during the period since July 26, 2011 have not been shown to be so disabling to actually or effectively result in limitation of forward flexion to greater than 30 degrees, but not greater than 60 degrees, limitation of the combined range of motion of the thoracolumbar spine to not greater than 120 degrees, or any muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, which are the requirements for the next higher percentage rating based on limitation of motion of the thoracolumbar spine without evidence of ankylosis (i.e. a 20 percent rating) under DC 5242.  See 38 C.F.R. § 4.71a, DC 5242.  

Furthermore, there has been no evidence of spinal ankylosis at any time during the claim period and the absence of ankylosis was specifically reported by the examiners who conducted the February 2009 and July 2011 VA examinations.   Also, the Veteran has not been diagnosed as having IVDS (the absence of which was noted in the May 2013 VA examination report) and he has not reported any incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician at any time during the claim period.  Hence, a higher rating is not warranted on the basis of ankylosis or "incapacitating episodes" of IVDS.

In light of the above findings, an initial compensable rating during the period from November 4, 2008 through July 25, 2011 and an initial rating higher than 10 percent since July 26, 2011 for degenerative joint disease of the lumbar spine under DCs 5003, 5242, or 5243 is not warranted.  38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, DCs 5003, 5242, 5243.

Moreover, there is no evidence of any neurologic impairment associated with the Veteran's low back disability.  He has not reported radiation of his back pain or any other neurologic symptoms, and examinations have shown no radiating pain, loss of sensation, or impairment of motor strength or reflexes involving the nerves of the thoracolumbar spine.  Given the normal findings, a separate rating for neurologic impairment is not warranted at any time during the claim period.  See 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.123, 4.124, 4.124a, DC 8520 (2012).

 Extraschedular

Pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b)(1).  The question of an extraschedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  The Board must specifically address whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242, 244 (2008).

If the evidence raises the question of entitlement to an extraschedular rating, 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").

There is no allegation or evidence of exceptional factors in this appeal with regard to the Veteran's service-connected low back disability.  All of the symptoms experienced by the Veteran described above are contemplated by the appropriate diagnostic criteria as set forth above.  Thus, referral for consideration of an extraschedular evaluation is not warranted.  38 C.F.R. § 3.321(b)(1).

Total Rating for Compensation Purposes Based on Individual Unemployability (TDIU)

The Court has held that entitlement to a TDIU is an element of all appeals for a higher initial rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met).

The evidence reflects that the Veteran has been employed full time with the Postal Service during the entire claim period.  As there is no evidence of unemployability, the question of entitlement to a TDIU is not raised under Roberson and Rice in this instance.
 








ORDER

Entitlement to an initial compensable rating, during the period from November 4, 2008 through July 25, 2011, and an initial rating higher than 10 percent, since July 26, 2011, for degenerative joint disease of the lumbar spine is denied.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs