Citation Nr: 1325527 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 09-23 424 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a rating higher than 20 percent disabling for a back strain with thoracolumbar ankylosis prior to February 24, 2012. 2. Entitlement to a rating higher than 20 percent disabling for a back strain with thoracolumbar ankylosis since February 24, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from January 2004 to June 2004, and from August 2004 to October 2005. This case comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In March 2013, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The record was held open after the hearing for an additional 60 days so that the appellant could submit additional evidence; however, no additional evidence was received by VA. The issues of entitlement to service connection for a neck disability, left lower extremity radiculopathy, and for headaches, secondary to a back strain with thoracolumbar ankylosis, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, but they are referred to the AOJ for appropriate action. The issue of entitlement to an initial evaluation higher than 20 percent disabling for a back strain with thoracolumbar ankylosis since February 24, 2012 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Prior to February 24, 2012, the appellant's back strain with thoracolumbar ankylosis was not manifested by forward thoracolumbar flexion to 30 degrees or less, or by favorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for a rating higher than 20 percent disabling for a back strain with thoracolumbar ankylosis prior to February 24, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in May 2007, VA advised the Veteran of the information and evidence needed to substantiate the claim. The letter provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, VA examinations and available private treatment records. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Analysis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation 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. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.) A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is 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. The Veteran appeals the 20 percent rating assigned for his back strain with thoracolumbar ankylosis. Initially, the Board notes that the Veteran was assigned a temporary 100 percent evaluation based on a need for convalescence effective from October 6 to November 30, 2008, after which a scheduler 20 percent evaluation was assigned. Accordingly, when reviewing the evidence applicable to the instant rating claim, the Board will consider this time frame to determine the overall impairment even though a temporary evaluation was assigned. The Veteran's disability is rated under Diagnostic Code 5237. Under the general rating formula for diseases and injuries of the spine, a 20 percent rating is assigned 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. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine that is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar 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 habits, 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. Following a December 2006 MRI, the impression was mild increased diffuse activity demonstrated at the mid thoracic spine which may be degenerative or arthritic in nature. During the February 2007 VA examination, the Veteran presented with mid back pain. It was noted that he had pain in his spine mainly the middle spine without radiation or referred pain. Examination revealed slight scoliosis. There was no motor or sensory loss, and/or evidence of spasm or muscle atrophy. The Veteran was afforded a VA examination in August 2007. The examiner noted that the Veteran had no lumbar spine x-ray in January 2006 but yet was diagnosed with "thoracolumbar spine ankylosis extent." The examiner stated that the Veteran later had x-ray and MRI and that neither showed ankylosis. Radiographs did show evidence of compression fractures at T9-L1. Examination of the thoracic spine revealed mild paraspinal spasm at the mid to low thoracic region, and in the lumbar area. No spasm was found to change the appellant's spinal contour. There was no weakness, atrophy, guarding but there was pain with motion and tenderness. There were no abnormal spinal curvatures and/or signs of thoracolumbar spinal ankylosis. Motor, reflex and sensory examinations were also normal. The examiner stated that the Veteran met the criteria for myofascial pain. Range of motion testing revealed he flexed to 90 degrees and extension was to 30 degrees without pain on active motion. Left and right lateral flexion was to 30 degrees with pain on active motion at 30 degrees and ending at 25 degrees. Left and right lateral rotation was to 45 degrees without pain on active motion. The examiner stated that the Veteran's range of motion was normal. Private examiner, Dr. C, stated in October 2007 that he last examined the Veteran in August 2007 at which time he was fitted with a thoracic brace. The appellant reported occasional left leg restlessness, and continued cracking and pain in the Veteran's mid thoracic spine. Physical examination revealed normal motor examination findings, but moderate mid thoracic tenderness. A myelogram revealed no evidence of cord impingement. There was evidence of increased kyphosis. Dr. C. reported that the Veteran appeared to have symptomatic Scheuermann's kyphosis. In October 2008, the Veteran underwent thoracic surgery. Following that procedure the diagnoses were thoracic kyphotic deformity T7 through T9 with intractable back pain, possible posttraumatic compression fractures, and possible Scheuermann's kyphosis. Following a February 2012 VA examination, thoracic kyphosis was diagnosed. Examination revealed that forward flexion was to 60 degrees with painful motion at 40 degrees, extension to 5 degrees with painful motion at 5 degrees, right lateral flexion to 20 degrees without objective evidence of painful motion, left lateral flexion to 20 degrees with painful motion at 20 degrees, right lateral rotation to 5 degrees with painful motion at 5 degrees and left lateral rotation to 10 degrees with painful motion at 10 degrees. The Veteran was able to perform three repetitive movements without additional limitation of thoracolumbar motion. There was functional loss and/or functional impairment of the spine to include less movement than normal, pain on movement, deformity, and interference with sitting, standing and/or weight bearing. There was no localized tenderness or pain to palpation for the joints but there was guarding or muscle spasm severe enough to result in abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. Muscle strength and sensory examinations revealed normal findings, and there was no muscle atrophy. Reflex examination showed knee and ankle reflexes to be hypoactive. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. He also did not have any other neurologic abnormalities or findings related to the spine such as bladder or bowel problems, and/or intervertebral disc syndrome. Examination revealed he had a surgical scar that was not painful or unstable, and the total area of all related scars was not greater than 39 sq. cm (6 square inches). The examiner stated that the Veteran's back disability impacts his ability to work in that he had to limit sitting and standing to short periods of time. The examiner also stated that bending and stooping was problematic for the Veteran, and that he could not do heavy lifting. He was advised to work no more than 34 hours per week because of pain. The Veteran contends that because of his back disability he will always be in pain and that it has limited his lifestyle. During his Board hearing, the Veteran reported back pain that occasionally radiated down his legs. He also reported that he had some neck issues and that he had problems bending forward because of his back. The Veteran also reported limitations walking and sitting. Based on the evidence presented, the Board finds that entitlement to a rating higher than 20 percent disabling is not warranted. In this regard, although the Veteran's lumbar spine disability limits motion, the evidence discloses that the remaining functional forward thoracolumbar flexion is consistently greater than 30 degrees. Range of motion testing revealed, at worst, forward flexion to 60 degrees. [While pain was found by one examiner to limit forward flexion to 40 degrees, that is still greater than 30 degrees. Moreover, 38 C.F.R. § 4.71a specifically provides that back disorders are to be rated under the prescribed criteria with or without symptoms such as pain (whether or not the pain radiates), with or without stiffness, and with or without aching in the area of the spine affected by residuals of injury or disease. That is, the presence of pain is already part of the formula. 68 Fed. Reg. 51454-55 (Aug. 27, 2003) (providing that "[p]ain is often the primary factor limiting motion, for example, and is almost always present when there is muscle spasm. Therefore, the evaluation criteria provided are meant to encompass and take into account the presence of pain, stiffness or aching, which are generally present when there is a disability of the spine.")] There is no evidence of ankylosis. The Veteran retains the ability to forward flex to 60 degrees with pain. Such movement demonstrates that his back is not functionally ankylosed or lacking the ability to flex. The Board is mindful that the Veteran was diagnosed with thoracolumbar spine ankylosis extent in the past. The Board notes, however, that finding of ankylosis was neither confirmed by x-ray or by MRI study. Furthermore, the August 2007 VA examiner stated that the Veteran later had a x-ray and MRI and that neither showed ankylosis. Finally, given that the appellant has retained motion in each plane of thoracolumbar movement, the record is against showing favorable ankylosis of the entire thoracolumbar spine. The Board acknowledges the Veteran's assertions that his disability is more severe than evaluated to include his reports of pain and functional limitations. The Board finds that he is competent to report his symptoms and has presented credible testimony. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also accepts that he has functional impairment. DeLuca. Neither the lay nor medical evidence, however, reflects a functional equivalent of forward thoracolumbar flexion limited to 30 degrees or less, or ankylosis of the entire thoracolumbar spine. At best, the lay and medical evidence of record demonstrates that a 20 percent rating, but not more. The Board considered whether the Veteran's service-connected lumbar spine disability would warrant a higher rating if rated on the basis of incapacitating episodes. Incapacitating episodes, however, are not shown by the record. That is, there is no evidence demonstrating any flare ups of back pain requiring physician prescribed bed rest. Without such evidence entitlement to a higher rating under the formula for rating an intervertebral disc syndrome based on incapacitating episodes is not warranted. With regard to neurologic abnormalities, the General Rating Formula directs that neurological manifestations should be rated separately from orthopedic manifestations. The Veteran reports radiation of pain down his legs once in a while. The question of entitlement to service connection for lower extremity radicular pain is not part of the issue currently before the Board, and as noted above, the question is being referred to the RO for appropriate consideration. The Board, however, has sufficient evidence to render an opinion regarding the nature and severity of the appellant's back disorder under the rating criteria governing the limitation of spinal motion. Lastly, the Board has considered whether a separate compensable rating is warranted for scarring of the back. Examination revealed scars associated with his disability are not painful, unstable and/or greater than 39 square centimeters. Hence, the above evidence preponderates against finding entitlement to a separate compensable rating for scarring. At no time during this appeal has the scars been of the severity and/or of size so as to warrant a compensable rating under the rating criteria pertaining to scars. 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds no Diagnostic Code or regulation which provides a basis upon which to assign a higher disability rating for his disability. Accordingly, the claim is denied. An inferred claim for a total disability rating based on individual unemployability under Rice v. Shinseki, 22 Vet. App. 447 (2009) also has been considered. The evidence, particularly most recently, shows some occupational impairment due to the Veteran's back disability to include limitations with sitting, bending and standing. The objective and subjective evidence, however, does not demonstrate that the Veteran is unemployable as a result of his disability. Therefore, any inferred claim of entitlement to individual unemployability benefits is inapplicable to this case. Regarding the question of entitlement to an extraschedular evaluation, consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the veteran's disability picture. Thun, 22 Vet. App. at 115. 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. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. Here, the Board finds that the Veteran has not required frequent periods of hospitalization for his disability. Further, the manifestations of his disability are specifically contemplated by the schedular criteria. Therefore, there is no reason to believe that the average industrial impairment from the disability would be in excess of that contemplated by the schedular criteria. Therefore, referral of the case for extra-schedular consideration is not in order. ORDER Entitlement to an evaluation higher than 20 percent disabling for a back strain with thoracolumbar ankylosis prior to February 24, 2012 is denied. REMAND The Veteran and his representative indicate that the appellant's s back strain with thoracolumbar ankylosis has worsened since his last VA examination in 2012. Specifically, he claims his back is more restricting and that he cannot bend as much. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board finds that an additional VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected lumbar spine disability. Ongoing VA medical records should also be obtained. See 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the record VA outpatient treatment records from October 2012 to present. Further, ask the Veteran to authorize VA to obtain any outstanding and relevant private treatment records, to include records from the Hampton County Physician Associates. All attempts to procure such records must be documented in the file. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, schedule the Veteran for a VA compensation examination to determine the severity of his back strain. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. Range of motion findings reported in degrees must be provided in the examination report. The examination report should include findings consistent with criteria of DeLuca. Any limitations due to weakness, fatigability, or incoordination including after repetitive movement must be noted in the examination report, if applicable. When citing range of motion, the examiner should clearly state at which degree pain begins. The examiner should also address any neurological problems associated with the spine. A complete rationale should be provided for any opinion expressed. 3. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiners documented their consideration of Virtual VA. If any report is deficient in any manner, the RO must implement corrective procedures at once. 5. Then, the record should again be reviewed. If any benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs