Citation Nr: 1324702	
Decision Date: 08/02/13    Archive Date: 08/13/13

DOCKET NO.  07-04 890	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to a disability rating in excess of 40 percent for degenerative bone and disc disease of the lumbar spine with spondylolisthesis, from November 1, 2009.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Taylor, Counsel


INTRODUCTION

The Veteran served on active duty with the United States Navy from August 1959 to August 1962.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision by the New Orleans, Louisiana, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which continued a 20 percent rating for degenerative bone and disc disease of the lumbar spine with spondylolisthesis.

In a February 2010 rating decision for the Veteran's service-connected degenerative bone and disc disease of the lumbar spine with spondylolisthesis, the RO granted: (1) a temporary 100 percent evaluation, effective January 5, 2009, pursuant to 38 C.F.R. § 4.30; (2) a 20 percent rating, effective May 1, 2009; (3) a temporary 100 percent evaluation, effective July 2, 2009, pursuant to 38 C.F.R. § 4.30; and (4) a 20 percent rating, effective November 1, 2009.  

In September 2011, the Veteran withdrew his request for a Travel Board hearing.  See 38 C.F.R. § 20.704(e) (2012).

In a January 2012 rating decision, the evaluation for the Veteran's service-connected degenerative bone and disc disease of the lumbar spine with spondylolisthesis was increased to 40 percent, effective November 1, 2009.  As that award did not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).  

The January 2012 rating decision further reflects that service connection for radiculopathy of the left lower extremity associated with the lumbar spine disability was granted.  The RO assigned a separate 10 percent evaluation for left lower extremity radiculopathy from December 2008, and assigned a 40 percent evaluation, from May 2010, along with special monthly compensation based on loss of use of the foot; a total disability rating based on individual unemployability (TDIU); entitlement to automobile and adaptive equipment; and dependent's educational assistance.  

In a February 2013 Board decision, a 40 percent rating was granted for the entire appeal period, prior to November 1, 2009.  The issue of an evaluation higher than 40 percent, since November 1, 2009, was remanded for additional development.  

A May 2013 rating decision reflects that service connection was granted for right lower extremity radiculopathy, a bladder condition, and scars, associated with the lumbar spine disability.  


FINDING OF FACT

Unfavorable ankylosis of the entire thoracolumbar spine and/or the entire spine is not demonstrated and the symptoms of the degenerative bone and disc disease of the lumbar spine with Spondylolisthesis do not result in incapacitating episodes of at least six weeks.  


CONCLUSION OF LAW

The criteria for a rating in excess of 40 percent for degenerative bone and disc disease of the lumbar spine with spondylolisthesis, since November 1, 2009, are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.71a Diagnostic Codes 5237-5243 (2012).


Duties to Notify and Assist

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  

Letters in March 2005 and November 2008 satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1).  These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claim was subsequently readjudicated, most recently in a May 2013 supplemental statement of the case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices.  See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).  

The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional treatment records pertinent to the appeal.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2).  VA examinations were conducted in March 2009, May 2010, June 2012, and April 2013; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4).  The examiners reviewed the claim file and the rationales provided for the opinions are based on objective findings, reliable principles, and sound reasoning.  

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009).  


REASONS AND BASES FOR FINDING AND CONCLUSION

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Separate ratings may be assigned for separate periods of time based on the facts found.  This practice is known as "staged" ratings."  Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

If the evidence for and against a claim is in equipoise, the claim will be granted.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.  

The criteria for evaluation of disabilities of the spine have been amended in the recent past.  The criteria for evaluation of intervertebral disc syndrome (IVDS) were amended effective September 23, 2002, and the criteria for evaluation of disabilities rated based on limitation of motion were amended effective September 26, 2003.  Only the current criteria are applicable here; no increase can be granted under the older criteria, as no claim was pending at the time of the amendments.  Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 

The general rating formula provides for the following disability ratings for diseases or 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.  It applies to Diagnostic Codes 5235 to 5243 unless the disability rated under Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 

Under the general rating formula for diseases and injuries of the spine, ratings are assigned as follows: 

1) 10 percent - 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; 

2) 20 percent - Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; 

3) 30 percent - Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; 

4) 40 percent - 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; 

5) 50 percent - Unfavorable ankylosis of the entire thoracolumbar spine; and 

6) 100 percent - Unfavorable ankylosis of the entire spine. 

Note (1): to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate Diagnostic Code. 

Note (2): (See also Plate V.)  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 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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees.  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. 

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2) provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 

Note (4): Round each range of motion measurement to the nearest five degrees. 

Note (5): For VA compensation purposes, 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. 

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 

The Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also Diagnostic Code 5003); 5243 Intervertebral disc syndrome. 

Intervertebral disc syndrome (preoperatively or postoperatively) may be 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.  See 38 C.F.R. § 4.25 (combined ratings table). 

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 10 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  A 20 percent disability rating is awarded for disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent evaluation is in order.  Finally, a maximum schedular rating of 60 percent is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 

The Veteran's degenerative bone and disc disease of the lumbar spine with spondylolisthesis is evaluated as 40 percent disabling under Diagnostic Code 5243.  A higher rating requires unfavorable ankylosis of the entire thoracolumbar spine.  

A May 2010 private record notes the Veteran has had 3 levels of lumbar fusion at L3-4, L4-5, and L5-S1, and the most recent fusion was in 2009.  Although the May 2010 VA examiner noted goniometric ranges of motion were almost nil, such does not establish unfavorable ankylosis of the entire thoracolumbar spine.  Rather, lumbar spine forward flexion was to 15 degrees, and right and left lateral flexion and rotation were each to 5 degrees.  Although 0 degrees of extension was reported, fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  

The June 2012 VA examiner specifically stated that, although the Veteran had undergone lumbar fusion, he did not have ankylosis, favorable or unfavorable, noting measurable range of motion of the thoracolumbar spine on examination, as well as on VA examination in May 2010.  The report of examination reflects forward flexion of the thoracolumbar spine to 35 degrees with pain beginning at 30 degrees.  Extension was to 5 degrees with pain beginning at 10 degrees [sic].  Right and left lateral flexion and extension were each to 10 degrees.  It was noted that the Veteran was able to perform repetitive motion.  

Consistent with the opinion of the June 2012 VA examiner are the findings reported on VA examination in April 2013.  The report of examination reflects forward flexion of the thoracolumbar spine to 20 degrees, with painful motion beginning at 10 degrees.  Extension was to 5 degrees, with pain beginning at 5 degrees.  Right and left lateral flexion were each to 20 degrees, with painful motion beginning at 10 degrees.  Right lateral rotation was to 5 degrees, with painful motion beginning at 5 degrees.  Left lateral rotation was to 10 degrees, with painful motion beginning at 5 degrees.  It was noted that the Veteran was able to perform repetitive motion with three repetitions.  

The evidence does not establish unfavorable ankylosis of the thoracolumbar spine at any time during the relevant period.  It is not disputed that the Veteran has pain on motion, but the 40 percent disability rating adequately compensates for pain and functional loss due to degenerative bone and disc disease of the lumbar spine with spondylolisthesis.  The 40 percent evaluation is the maximum evaluation for limitation of motion.  Therefore, further DeLuca analysis is not required.  Johnston v. Brown, 10 Vet. App. 80 (1997).

No incapacitating episodes were noted on VA examination in May 2010 and June 2012.  Although the April 2013 VA examination report reflects the Veteran's complaints of flare-ups of pain lasting up to three to four days, the examiner reported that the Veteran did not have incapacitating episodes of back pain.  It was specifically noted that the symptoms were not severe enough to require prescribed bed rest by a physician.  

The evidence does not establish incapacitating episodes having a total duration of at least 6 weeks at any time during the relevant period to warrant a higher rating based on incapacitating episodes.  

To the extent there is involvement of the sacral joints, 38 C.F.R. § 4.66 directs that lumbosacral and sacroiliac joints are to be considered as one anatomical segment for rating purposes.  

With respect to interference with employment, the RO has granted a total rating based on individual unemployability.  Regardless, that 40 percent evaluation assigned contemplates impairment in earning capacity, including loss of time from exacerbations due to residuals of degenerative bone and disc disease of the lumbar spine with spondylolisthesis under Diagnostic Codes 5237-5243.  38 C.F.R. § 4.1 (2012). 

Although the record reflects neurologic abnormalities associated with his lumbar spine disability, the RO has assigned separate ratings for radiculopathy of the right and left lower extremities, scars, and a bladder disorder.  Both a February 2010 VA treatment record and the May 2010 and June 2012 VA examination reports note no bowel dysfunction.  

The Board finds the 40 percent evaluation for degenerative bone and disc disease of the lumbar spine with spondylolisthesis is not warranted at any time pertinent to this appeal.  The preponderance of the evidence is against assignment of a higher rating, and there is no doubt to be resolved.  

The evidence shows that the Veteran's service-connected back disability results in limitation of motion; the rating criteria considered in this case reasonably describe the Veteran's disability level and these symptoms.  The Veteran's disability picture is contemplated by the rating schedule; the assigned schedular evaluation for the service-connected degenerative bone and disc disease of the lumbar spine with spondylolisthesis is adequate; and referral for extra-schedular consideration is not required.  Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1).


ORDER

A disability evaluation higher than 40 percent for degenerative bone and disc disease of the lumbar spine with spondylolisthesis, since November 1, 2009, is denied.  



____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs