Citation Nr: 1325162 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 09-49 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to an initial disability evaluation in excess of 40 percent for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from March 1972 to April 1976 and with the United States Army from June 1987 to June 1988 and January 1991 to June 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Salt Lake City, Utah Department of Veterans Affairs (VA) Regional Office (RO). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. FINDING OF FACT The Veteran's low back disability has been manifested by flexion limited to, at worst, 5 degrees, with pain, stiffness, and numbness into the lower left extremity, even with consideration of pain and functional loss caused by pain. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 40 percent for lumbar strain with spondylosis have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.14, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). 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. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Disabilities of the spine are evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5235- 5242 (2012). Intervertebral disc syndrome will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes (outlined below), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25 . 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Under the general rating formula for rating diseases and injuries of the spine, effective September 26, 2003, a 40 percent disability 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. A 50 percent disability rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. There are several notes set out after the diagnostic criteria, which provide the following: first, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 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 thoracolumbar spine is to 240 degrees. Third, 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 the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Note five provides that for VA compensation purposes, unfavorable ankylosis is a condition in which 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Note six provides that disabilities of the thoracolumbar and cervical spine segments shall be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. A review of the Veteran's service treatment records (STRs) shows that at the time of his May 2007 retirement physical, he was noted to have lumbago and complained of some left sided sciatic-type pain that had it onset a few months earlier. A subsequent June 2007 STR shows that the Veteran was seen for complaints for ongoing back pain with occasional left side radicular symptoms. It was noted that a recent magnetic resonance imaging test (MRI) revealed significant facet degeneration without evidence of major disc herniation or nerve impingement. The Veteran was afforded a VA examination in June 2008. At that time he reported that he began developing back pain in 2001. He reported that he had been receiving treatment at Hill Air Force Base for the past year, which included a June 2007 magnetic resonance imaging test (MRI), which showed degenerative disk disease (DDD), facet arthropathy changes, mild central canal narrowing most pronounced at L3-4 level, and mild facet arthropathy changes with fluid within the facet joints at multiple levels. The Veteran denied having had any surgerical treatment for his low back disability, but did report that he received a spinal injection that provided some temporary relief. He reported that his low back pain was constant and was 8 out of 10 in severity. He reported that he experienced multiple flare-ups a day which were induced by standing up to one half hour or sitting up to one half hour. He described his pain during flare-ups as sharp and reported that they lasted for up to one hour and were alleviated by lying down. He denied any incapacitating episodes. He reported radicular pain in his left posterior thigh and left with tingling in his foot and numbness on his lateral side, which was consistent with L5-S1 radiculopathy. He reported that he was unable to do any yard work or heavy work, but that he was able to perform duties of self care. He reported that his ability to walk was not restricted by his back. He reported that since retiring from the U.S. Army, he has not been employed On examination the Veteran's posture and gait were slightly abnormal. He had a very mild antalgic gait to the left foot with stiffness through the lumbar spine as he moved. He did not require the use of any assistive or corrective devices. There were no spasms of the lumbar spine. There was tenderness at the left sacroiliac joint, as well as at L4-5 and L5-S1 on the spinous process. Range of motion measurements were as follows: flexion to 80 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees. It was noted that the Veteran had pain throughout these ranges of motion which slightly worsened at the very end range. His general strength was normal and he was able to perform heel, toe, and tandem walking. Romberg was negative. Sensory examination showed mild paradoxical changes of decreased sensation in the left lateral foot and lateral leg with increased sensitivity when compared with the right side. The slump test was negative and straight leg raise to 60 degrees demonstrated mild radicular symptoms from the left buttock to the left posterior thigh. Reflexes were decreased bilaterally, but symmetrically. There was no change in active or passive range of motion during repeat range of motion testing and no additional loss of range of motion in the lumbar spine due to pain, weakness, impaired endurance, fatigue, incoordination, or flare ups, providing evidence against this claim. The examiner diagnosed lumbar DDD with minimal foraminal narrowing on the left side at L5-S1 compatible with L5-S1 radiculopathy. The Veteran was afforded another VA examination in February 2010. At that time he reported he initially developed low back pain in 2001 and that the pain became relatively constant around 2004. He reported that since 2004, he had experienced a significant worsening of the pain and it was a 10 out of 10 in severity on a constant basis, and it did not flare beyond that level of severity. He reported that his low back pain interfered with his routine activity and he could only stand for 30 minutes or sit for 30 minutes at a time before he needed to change positions and that he needed to lie down frequently as a result of the pain. He reported that he had engaged in leisure activities, such as hiking, fishing, and playing golf; however, his persistent low back pain prevented him from continuing to participate in those activities. He reported that he was taking, on average, four to eight Percocet tablets daily to manage his low back pain and took Flexeril at night to sleep. He reported that these medications helped relieve his pain somewhat, but never alleviated the pain completely. He denied any hospitalizations or surgeries for his low back disability, as well as any bowel or bladder dysfunction. He reported pain that radiated into his left buttock and the left posterior thigh to just above his knee, which subsided slightly after taking two Percocet tablets. He reported having an MRI of his lumbar spine approximately two months prior to his VA examination and that the findings were consistent with the June 2007 MRI discussed above. He reported that his primary care physician was considering physical therapy and decompression therapy of the lumbar spine, as well as possible epidural injections. The Veteran reported that he slept poorly at night and got, at most 5 hours of sleep a night, but usually 3 or 4, due to his back pain. He reported pain with bending and lifting but denied any incapacitating episodes. The Veteran reported that he lived in an apartment and was able to do a little apartment work and tried to walk a little but did no other exercise. He reported that he had not been employed since he retired from the Army in June 2007 and that he attended school one day per week. On examination he was found to be generally healthy, but was noted to walk very slowly. It was noted that he did not have an antalgic gait, but simply a slow gait. His posture was normal and he did not require the use any assistive devices or orthotics. Range of motion measurements for the Veteran's thoracolumbar spine were as follows: flexion to 5 degrees, extension to 10 degrees, left and right lateral flexion to 10 degrees, and left and right rotation to 15 degrees. The Veteran was noted to have pain throughout all ranges of motion and could go no further due to his pain. The Veteran was noted to have moderately severe spasms of the paralumbar muscles and he described them as very tender. Straight leg raises were positive on the left side at 20 degrees, both sitting and supine, and positive on the right side at 70 degrees, both sitting and supine. Except as already noted, there was no change in active or passive ranges of motion during repeat testing and no additional loss of range of motion of the spine due to weakness, impaired endurance, fatigue, incoordination, flare-ups, or loss of function, providing more evidence against this claim. The examiner diagnosed DDD in the lumbar spine at L3-4, L4-5, and L5-S1 with spondylitic changes and narrowing of the neural foramina at L4-L5 and on the left at L4-S1. There was also evidence of left S1 nerve root dysfunction. Postservice medical records indicate that the Veteran received retired service member medical treatment at the 75th Medical Group at Hill Air Force Base. These records indicate that in December 2008 the Veteran applied for Social Security Administration (SSA) disability benefits and that SSA requested the medical records from Hill Air Force base in conjunction with the claim. There is nothing to suggest that the Veteran was receiving treatment for his low back disability at any treatment facility other than Hill Air Force Base at that time. Additionally, since that time, the Veteran has been afforded a new VA examination and the postservice treatment records from Hill Air Force Base provide no indication that the Veteran's low back disability is more severe than what is reflected in the February 2010 VA examination report. Therefore, the Board finds that attempts to obtain any SSA records are unnecessary, as the records requested in conjunction with the SSA claim are already associated with the claims file (simply stated, VA would simply be obtaining copies of records it has as the SSA records are simply copies of VA medical records). Additionally, private treatment records from February 2010 show that the Veteran was seen at that time for an MRI. The MRI showed DDD with degenerative joint disease of the lumbar spine. After review of the evidence, the Board finds that an initial disability evaluation in excess of 40 percent for his low back disability is not warranted. In this regard, the Board notes, there is no indication from the record that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine. Furthermore, the Veteran's flexion is limited to, at worst, 5 degrees. Therefore, a higher disability rating is not warranted at this time. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242. The Board has considered the Veteran's complaints of pain, spasm, decreased motion, stiffness, and numbness in his lower left extremity. However, there is no other evidence showing that the Veteran has more limitation of motion than that found at his VA examinations. Thus, considering all pertinent disability factors, there is no appropriate basis for assigning a schedular rating in excess of 40 percent at any point during the period on appeal for the functional impairment of the Veteran's low back disability. The Board has also considered assigning a disability rating under Diagnostic Code 5243, for DDD or intervertebral disc syndrome based on incapacitating episodes rather than limitation of motion. However, while the Veteran has been diagnosed with DDD, there is no evidence that the Veteran has been medically prescribed bed rest and at his June 2008 and February 2010 VA examinations, he specifically denied experiencing any incapacitating episodes. Therefore, the Veteran's back disorder is properly rated based on pain and limitation of motion. Regarding intervertebral disc syndrome, none is indicated. In any event, bed rest prescribed by a doctor is simply not indicated there is simply no basis to award the Veteran a higher than 40 percent evaluation. In this regard, it is very important for the Veteran to understand that without consideration of his pain and problems there would be no basis for a compensable evaluation, let alone a 40% evaluation (a highly significant evaluation, indicating generally a 40% decrease in the ability to work). The Board has also considered assigning staged ratings; however, at no time during the period in question has the Veteran's low back disability warranted a higher schedular rating. See Fenderson v. West, 12 Vet. App. 119. The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration 38 C.F.R. § 3.321(b)(1) (2012). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). The severity of the Veteran's disability is contemplated by the schedular criteria. The Board acknowledges that the Veteran has reported that he has not worked since his retirement from the Army; however, he has provided no indication that this is a result of his current low back disability. Furthermore, the Board notes, that while the Veteran is unemployed, he is currently pursuing a degree in criminal justice. His description of his back disorder indicates that he has limitation of motion and pain - all included in the rating criteria currently assigned. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. In addition, the evidence does not show frequent hospitalization or marked interference with employment beyond that envisioned by the currently assigned rating. Referral of this case for extra-schedular consideration is not in order. Finally, the Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or, if the disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In the instant case, the Board acknowledges that in December 2008, the Veteran filed a claim for SSA disability benefits, but there is no indication whether the Veteran was granted SSA disability. Additionally, the record suggested that this claim was related to a variety of disabilities, and not solely due to the Veteran's low back disability currently on appeal. Further, the Board notes that the Veteran has indicated that he has not been employed since he retired from active service in June 2007; however, he has provided no indication that his unemployment is the result of his low back disability. He has also reported that he is currently attending school and pursuing a degree in military justice. Therefore, the Board finds that while the Veteran is currently unemployed, the occupational impairment caused by his low back disability is contemplated by the 40 percent disability rating currently assigned and as the Veteran has not alleged that he is unemployable as a result of his low back disability, no further discussion of this matter is necessary and that TDIU is being raised by the record in this case, at this time. If the Veteran believes he is unemployable due to his service connected disability, he should file such a claim with the RO at any time. At this time, it does not appear to the Board, based on the Veteran's statements and a review of the medical evidence of record, that such a claim is being raised directly or indirectly from the record at this time. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is re-adjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in October 2007 and December 2007that fully addressed all notice elements and was sent prior to the initial RO decision in these matters. These letters informed the Veteran of what evidence was required to substantiate his claims and of his and VA's respective duties for obtaining evidence. The letters also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished and therefore appellate review of the claims addressed above may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained pertinent postservice treatment records, as discussed above, efforts to obtain SSA records are not necessary in this case, and the Veteran was afforded VA medical examinations in June 2008 and February 2010. The Board acknowledges that in a May 2013 statement, associated with the Veteran's "Virtual VA" file, the Veteran's representative has argued that the Veteran is entitled to a new VA examination and asserts that the February 2010 VA examination report is too old to adequately evaluate the Veteran's low back disability. The Board notes that in support of this assertion, the Veteran's representative has cited to Proscelle v. Derwinski, 2 Vet. App. 629 (1992), which notes that a Veteran is competent to provide an opinion that his disability has worsened. However, in this case, the Veteran's representative has only argued that the February 2010 VA examination report is too old to evaluate the Veteran's low back disability. The Board notes that Proscelle does not prohibit the Board from the use of an adequate VA examination report simply based on the passage of time. Upon careful review of the claims files, the Board finds that there is no evidence suggesting that the Veteran has asserted his low back disability has worsened since his the February 2010 VA examination, and therefore a new VA examination is not warranted. Further, there is no indication in the treatment records of any problem with the back that would provide a basis to go beyond 40 percent. Finally, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to an initial disability rating in excess of 40 percent for a low back disability is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs