Citation Nr: 1325035 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 10-00 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating in excess of 10 percent for service-connected lumbosacral strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from August 1973 to November 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that during the course of his appeal, the Veteran requested that he be scheduled for a hearing before a traveling Veterans Law Judge at the RO. In early April 2012, he was notified that a hearing was scheduled for May 18, 2012. He failed to report for the hearing. He has not explained his absence or requested to reschedule the hearing. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2012). FINDING OF FACT The Veteran's service-connected lumbosacral strain is shown to have been productive of complaints of pain, but not forward flexion of the thoracolumbar spine not greater than 60 degrees, a combined range of motion of the thoracolumbar spine not greater than 120 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. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for service-connected lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Increased Rating The Veteran asserts that he is entitled to an increased initial evaluation for his service-connected lumbosacral strain. He complains that his claims file was not available to the examiner during his June 2009 examination. See Veteran's appeal (VA Form 21-4138), received in July 2009. Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § Part 4 (2012). Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence the benefit of the doubt is to be resolved in the veteran's favor. 38 U.S.C.A. § 5107(b). With regard to the history of the disability in issue, the Veteran's service treatment reports show that he received a number of treatments for low back pain beginning in 1975. A Physical Evaluation Board report, dated in October 1976, contains a diagnosis of chronic lumbosacral strain with mild spondylosis. See also Medical Board Report, dated in September 1976. As for the post-service medical evidence, a February 1977 VA examination report contained a diagnosis of history of lumbar strain with no objective evidence of orthopedic disease of the spine found on physical examination, said to be periodically symptomatic. A March 1991 VA examination report contains a diagnosis of history of low back injury. A June 2006 VA X-ray report contained an impression noting that it was normal. See 38 C.F.R. § 4.1 (2012). In March 1977 rating decision, the RO granted service connection for lumbosacral strain, evaluated as noncompensable (0 percent disabling). In January 1992, the RO increased the Veteran's rating to 10 percent. In each case, there was no appeal, and the RO's decisions became final. See 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2012). In January 2003, the RO denied a claim for an increased rating. The Veteran appealed, and in April 1993, the Board denied the claim. There was no appeal, and the Board's decision became final. See 38 U.S.C.A. § 7104(b) (West 2002 & Supp. 2012). In March 2009, the Veteran filed a claim for an increased rating. In June 2009, the RO denied the claim. The Veteran has appealed. The RO has evaluated the Veteran's lumbosacral strain under 38 C.F.R. § 4.71, Diagnostic Code (DC) 5237. Under 38 C.F.R. § 4.71a, DC 5237 (lumbosacral strain), and DC 5242 (degenerative arthritis of the spine) (see also DC 5003), are rated under the "General Rating Formula for Diseases and Injuries of the Spine." The General Rating Formula provides that an evaluation of 20 percent is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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. Note (1): Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is 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. 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 (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. As an initial matter, the Veteran has not been diagnosed with intervertebral disc syndrome, he is not shown to have "incapacitating episodes" as defined at DC 5293, and service connection is not currently in effect for intervertebral disc syndrome. See e.g. June 2009 QTC examination report (noting that there was no period of incapacitation in the last year). Therefore, the provisions at 38 C.F.R. § 4.71a, DC 5243, and the "Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes" are not for application. The Board finds that a rating in excess of 10 percent is not warranted. An evaluation in excess of 10 percent is not appropriate without evidence of forward flexion of the thoracolumbar spine limited to between 30 and 60 degrees, or evidence of the combined range of motion of the thoracolumbar spine not greater than 120 degrees. Here, the evidence is insufficient to show that the Veteran's disability meets these criteria. The only recorded ranges of motion for the spine of record during this time period are found in a QTC examination report, dated in June 2009, which show that the Veteran's lumbar spine had flexion to 90 degrees, extension to 20 degrees, lateral flexion to 40 degrees, bilaterally, and rotation to 35 degrees, bilaterally. Posture, gait, curvatures of the spine, symmetry in appearance, and symmetry and rhythm of spinal motion were all normal. There was no ankylosis. Given the foregoing, there is also no evidence to show muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Accordingly, the criteria for a rating in excess of 10 percent are not shown to have been met, and the claim must be denied. With respect to possibility of entitlement to an increased initial evaluation under 38 C.F.R. §§ 4.40 and 4.45, the Board has also considered whether an increased rating could be assigned on the basis of functional loss due to the Veteran's subjective complaints of pain. DeLuca v. Brown, 8 Vet. App. 202, 204-206 (1995); VAGCOPPREC 9-98, 63 Fed. Reg. 56704 (1998). The June 2009 QTC examination report shows that the Veteran complained of almost-daily moderate low back pain that radiated to his upper back by his shoulders, which tended to last 30 minutes to one hour, or "45 minutes on and off." He also complained of almost-daily stiffness in the center of his back. He denied any associated weakness. He reported taking Tramadol three times per day, which did not help his symptoms. He complained of flare-ups about three times per week, lasting five minutes, caused by such activities as sitting, driving, doing his job, or "just doing nothing while watching TV." He stated that he could not walk 20 minutes, and only for about "half a block or so." He denied unsteadiness. He reported symptoms that included a general feeling of illness, as well as numbness, weakness. He denied having any associated trauma or illness related to his low back disability. On examination, gait, posture, position of the head, curvature of the spine, symmetry in appearance, and symmetry of rhythm of spinal motion were normal. There was no ankylosis. There was pain on motion, fatigue, lack of endurance, and muscle spasm, but not weakness, incoordination, effusion, instability, or abnormal movement (another section of the report indicates that there was no muscle spasm). After additional ranges of motion were performed, there was pain, fatigue and lack of endurance, but no additional loss of motion, weakness, or incoordination. There were no vertebral fractures. A neurological examination was normal. There were no incapacitating episodes during the last 12 months. There was no bladder or bowel dysfunction. The diagnosis was chronic lumbosacral strain. The Veteran stated that he was able to perform ADLs (activities of daily living) but that he was let go at work because of limitations in strength and being slow, and he was told that he was physically unable to do the work. The report notes that his back problem was aggravated by diabetes mellitus, thyroid disease, and tachycardia (service connection is not currently in effect for any of these disabilities). An associated X-ray report contains an impression of "normal lumbar spine." VA progress notes show a number of treatments for low back pain, with use of Tramadol, with some "problem lists" noting disc disease, and DJD (degenerative joint disease (both terms are otherwise unspecified), and lumbago. A March 2008 report notes that there was no joint pain or swelling. A May 2009 MRI (magnetic resonance imaging) study was noted to show multilevel degenerative change of the lumbar spine, with a protruding disc at L3-4 with minor narrowing of the spinal canal, but no significant foraminal stenosis. There was also a protruding disc at L4-5 with some minor narrowing of the left exiting L4 nerve root, and a "pretty good" appearance of L5-S1. A July 2009 report notes a stable gait, with full strength in all major muscle groups, diminished reflexes at the knees, and 1+ reflexes at the ankles. The Veteran complained of back pain, and reported that he lost his job due to his inability to work as a manual laborer. A February 2010 report shows that the Veteran denied having any neurological symptoms; on examination, there was intact sensation to monofilament, bilaterally. The claims file includes statements from the Veteran's spouse, daughter, and two sons, received in June 2009, which show that the authors assert that the Veteran has severe back pain. In summary, while there is some evidence of pain, the evidence does not otherwise show functional loss due to pain to warrant an evaluation in excess of 10 percent. The Veteran's range of motion is not limited to less than 60 degrees of forward flexion; nor is the combined range of motion of the thoracolumbar spine less than 120 degrees. Moreover, pain alone does not constitute a functional loss under VA regulations. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). When the ranges of motion are considered together with the evidence showing functional loss, to include the findings (or lack thereof) pertaining to neurologic deficits, muscle strength, and the lack of evidence of muscle atrophy, the Board finds that there is insufficient evidence of objective pain on motion, or any other functional loss, to warrant a rating in excess of 10 percent. The Board also notes that as there is no evidence that the service-connected thoracolumbar spine disability is manifested by intervertebral disc syndrome, and there is no evidence of incapacitating episodes there from, consideration of a higher rating under this diagnostic code is not for application in this case. See 38 C.F.R. § 4.71(a), Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Accordingly, the Board finds that the criteria for a rating in excess of 10 percent are not shown to have been met, and the claim must be denied. As a final matter, the Board finds that the evidence is insufficient to show that the Veteran has a neurological disorder that is related to his service-connected back disability. See General Rating Formula, Note 1. There is no evidence of a diagnosed neurological condition, let alone one that is related to his lumbar spine disability. The Board has also considered the Veteran's statements that his disability is worse than the 10 percent rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of his low back disability according to the appropriate diagnostic codes. On the other hand, such competent evidence concerning the nature and extent of the Veteran's lumbar spine disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and clinical records) directly address the criteria under which this disability is evaluated. Further consideration has been given to whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2012); Thun, 22 Vet. App. at 116. The schedular evaluation in this case is not inadequate. When comparing the Veteran's disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that manifestations of the service-connected low back disability are congruent with the disability picture represented by the disability rating assigned herein. The criteria for the 10 percent rating assigned herein more than reasonably describes the Veteran's disability level and symptomatology. The Veteran is shown to have some pain in his low back, with no history of surgery. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Accordingly, referral for consideration of an extra-schedular rating is not warranted. Finally, to the extent that a claim for individual unemployability has been raised by the record, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board notes that the rating assigned to the Veteran low back disability, which is now 10 percent, does not meet the minimal criteria for a TDIU under 38 C.F.R. § 4.16(a) (2012). The Board further finds that that the clinical evidence does not objectively demonstrate or otherwise indicate that he is unable to secure and follow a substantially gainful occupation by reason of his service-connected low back disability. The clinical findings do not demonstrate that his service-connected low back disability actually renders him unable to secure and follow a substantially gainful occupation. Outpatient treatment records document that he suffers from several non-service connected disabilities, to include hypertension, diabetes mellitus, atypical chest pain, a depressive disorder, hypothyroidism, and Hodgkin's Disease. The Veteran has reported that he is unable to work due to psychiatric symptoms, and diabetes mellitus. See February 2010 VA progress note. There is no basis to refer his case to the Director of the Compensation and Pension Service for extraschedular consideration for individual unemployability, pursuant to 38 C.F.R. § 4.16(b) (2012). II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in May 2009. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The RO has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue being adjudicated have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA and non-VA medical records. In June 2009, the Veteran was afforded an examination. In April 2011, he was notified that he was scheduled for a VA examination. However, a report dated in May 2011 notes that he called and canceled his examination, and there is no record to show that the Veteran ever requested another examination. See Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005) (the claimant is obligated to cooperate in the development of evidence, and failure to do so puts him at risk of an adverse adjudication based on an incomplete and underdeveloped record.). Although the Veteran is apparently receiving disability benefits from the Social Security Administration (SSA), and although the SSA's reports are not of record, no additional development is warranted. The Veteran has not asserted that the SSA's records are relevant to his claim, and he has stated that he is unemployed due to psychiatric symptoms, and diabetes mellitus. See February 2010 VA progress note. Therefore, no additional development is warranted. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA, nor prejudice the Veteran under Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). [Continued on Next Page] ORDER The appeal is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs