Citation Nr: 1326170 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 07-12 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an increased evaluation for low back syndrome with muscle spasm, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from June 1976 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) from a March 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Newington, Connecticut. The Veteran was scheduled for Travel Board hearing in July 2009, to which she failed to report. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d), (e) (2012). This matter was previously before the Board in May 2010 and July 2012 and was remanded for further development. It has now returned to the Board for further appellate consideration. The Board finds that there has been substantial compliance with the mandates of the remands and will proceed to adjudicate the appeal. FINDINGS OF FACT During the rating period on appeal, the Veteran's service-connected spine disability has been manifested by complaints of pain and weakness; objectively, she has flexion to more than 30 degrees, no objective evidence of ankylosis or radiculopathy, no associated bowel or bladder problems, and no associated incapacitation episodes. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for low back syndrome with muscle spasm have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5235 - 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in January and March 2006. The claims file includes private and VA medical records, and the statements of the Veteran in support of her claim. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. VA examinations/opinions were obtained in January 2006, July 2007, October 2010, and April 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the Veteran has been afforded adequate VA examinations/opinions. The reports include clinical examinations, diagnostic testing, and the Veteran's reported symptoms. The reports provide findings relevant to the criteria for rating the disability at issue. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008), Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (citing Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria Rating Disabilities in general Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating 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 is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating musculoskeletal disabilities Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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 and 4.45 (2012), see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. Id. § 4.45. Pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss. Pain may cause a functional loss but itself does not constitute functional loss; rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Rating the Spine The diagnostic code criteria pertinent to spinal disabilities in general are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 - 5243 (2012). A 20 percent evaluation is warranted when there is 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 is not greater than 120 degrees, or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. 38 C.F.R. § 4.71a. In addition, intervertebral disc syndrome may also be evaluated based on incapacitating episodes, depending on which method results in the higher evaluation when all disabilities are combined under § 4.25. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claim on appeal. 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 U.S. Court of Appeals for 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 the claim. The Veteran's service-connected low back syndrome with muscle spasm is evaluated as 20 percent disabling from 1977. (In a September 1977 rating decision, service connection was granted for low back syndrome with muscle spasm and x-ray evidence of minimal wedging at T12-L1 and an initial 20 percent disability rating was assigned under Diagnostic Codes 5285-5295, effective June 29, 1977.) Since the 20 percent rating has been in effect for more than 20 years, now rated under Diagnostic Code 5237, this rating is protected, by law, against reduction. See 38 C.F.R. § 3.951(b) (2012). In a December 2005 statement, the Veteran asserted that her disability had worsened. An evaluation in excess of 20 percent would be warranted if the evidence reflected that the Veteran had flexion of the thoracolumbar spine limited to 30 degrees or less, or ankylosis of the entire thoracolumbar spine. The evidence, as discussed below, is against such a finding. The Veteran underwent VA examinations in January 2006, July 2007, October 2010, and April 2013. The evidence reflects that the Veteran was in a post service motor vehicle accident (MVA) in October 2002 when she noted immediate back pain. The diagnosis at that time was cervical sprain/strain and lumbosacral sprain/strain. (See November 2002 Allied Medical Associates record.) The Veteran does not dispute this accident. (During a 2003 VA examination, the Veteran reported being involved the October 2002, injuring her lower back, right shoulder and left knee. During the July 2007 VA examination, the Veteran also reported that she had been in another MVA in October 2005 and had had multiple ankle and arm fractures during the previous year.) A January 2006 VA examination report reflects that the Veteran reported that she does not use a cane or any assistive devices for ambulation. She reported chronic low back pain without radiculitis and without bowel and bladder dysfunction. She noted that she did not currently wear a back brace, but that she should apply for another one as it had resolved her symptoms. The Veteran described intermittent pain throughout the day which was a dull achy pain on a scale of 7 to 8 out of 10. The examiner noted that the Veteran was not working but that this was most likely due to her polysubstance abuse and psychiatric status and not due to her back pain. The Veteran denied any weight loss, fevers, malaise, dizziness, visual disturbances, numbness, weakness, and sexual dysfunction due to her back pain. She did not have falls and was able to do all her individual activities of daily living. Upon clinical examination in January 2006, she had normal ambulation, but it was "obvious" that she had back pain when rising from a chair. Forward flexion was limited to 90 degrees with discomfort at the end point. Extension was to 35 degrees with discomfort at the end point. Bilateral flexion was to 30 with discomfort at the end point, and bilateral rotation was to 30 degrees with discomfit at 20 degrees after repetition. She had increased fatigue after repetition. After repetition, the range of motion was the same without changes; however, it was much slower and the Veteran had increased stiffness. She was not able to squat and had pain with standing on her toes, and was unable to stand on her heels due to pain. There were no postural abnormalities. She had normal curvature of the spine and no spasms were noted. She had a positive straight leg test. A Laseque's test was negative and there were no neurological findings. The January 2006 VA examiner's assessment was mechanical back strain more likely than not resulted from the initial injury in the military with mild functional limitations with flare-ups, and a normal neurological exam. The examination report reflects that the Veteran had gone to the wrong VA facility for her VA examination and that therefore, her clinical records with regard to her back were not present for the VA examination. Importantly, the history provided by the Veteran, as evidenced in the examination report, is negative for any mention of a MVA in 2002 or 2005, with injuries to the back. The examiner stated that the records available to her did not contain notes with regard to back problems. Thus, the Board finds that the report lacks probative value as to the extent of the Veteran's service-connected low back disability symptoms as compared to symptoms, if any, from her post service accidents. The Veteran underwent another VA examination in July 2007. The Veteran was noted to have been issued a rollator walker in January 2007 and a new back brace in January 2007. It was noted that the Veteran had diabetes mellitus. It was also noted that the Veteran reported generalized pain and reported problems with walking and lower extremity weakness. She reported a "hard time" standing and sitting, climbing stairs and walking. She reported that she wears a trace which helps "a little". She further reported that she had been involved in an MVA in October 2005 and had a cast on her leg. She also reported multiple ankle fractures in the past. The Veteran reported pain which was an 8 out of 10. She reported that the pain is alleviated by changing positions and that she no longer takes pain medication for it. She reported flare ups twice a week, for up to one hour in duration, with wet weather and with cold weather. She did not state that she had associated features of weight loss, fevers, malaise, dizziness, visual disturbances, numbness, bladder complaints, or bowel complaints. There was visible weakness of the lower extremities. She reported that she was able to walk one block before her legs feel weak and/or give out. She was noted to wear a back brace around the hips. Upon physical examination in 2007, the examiner noted that the Veteran moves "carefully in general. Gets onto exam table slowly and makes small gasping sounds with most movements." It was further noted that she was able to lay flat on table, and, while sitting, was able to move her legs from a 90 degree downward position to fully extension without any problems or visible discomfort. It was noted that with the straight leg raise testing, she shed tears. It was further noted that she was able to get to "about 20 degrees before she cries." The examiner noted that the ambulation is "more of a shuffling slower waddle than a normal walk." The Veteran stated that she could not attempt forward flexion. With regard to extension, the examiner noted it was to 10 degrees at most but was "really bending with neck and knees, not lower back." Bilateral lateral flexion was to 20 degrees, and bilateral rotation was to 30 degrees, with pain at end of all range of motions. The examiner noted that there was significant guarding as well as the Veteran shed tears throughout most of the examination. The range of motion was limited by pain, fatigue, weakness, and lack of endurance following repetitive use and during flare-ups. There was no evidence of spasm or tenderness. The sensory examination revealed that the Veteran's sensory system was grossly intact. No gross atrophy was appreciated, but the Veteran had 2-4/5 bilateral lower extremity strength after significant coaching. There was a positive Lasegues's sign at 40 degrees with pain. There was no reported radicular pain. It was noted that there was "negative distracted [straight leg raise test]. Also able to lay flat with legs fully extended with no problems." There was no reported IVDS or incapacitating episodes in the past 12 months due to low back pain. The July 2007 VA examiner concluded that the Veteran had a diagnosis of lumbar strain; however, the examiner was unable to conclude that increased lumbar pain and lower extremity weakness was due to her service-connected condition. "Overall moderately severe functional impairment as subjectively reported more likely reflects chronic nonservice-connected alcohol abuse and diabetes mellitus, Type II, and multiple nonservice-connected additional traumas in addition to service-connected lumbar strain. Three positive Weddells [sic] signs suggest a psychological component to [the Veteran's] pain but do not rule out a physical etiology." Private records reflect that in January 2008, the Veteran sought treatment for increased back pain after being pushed down the stairs by her sister. The assessment was "lumbar contusion." An October 2010 VA examination report is of record. The Veteran reported constant pain. Upon clinical examination, forward flexion was to 40 degrees, extension was to 5 degrees, bilateral lateral flexion was to 30 degrees, and bilateral lateral rotation was to 30 degrees. The examiner noted that the Veteran had abnormal gait and could only do a few steps from the rollator to the examination table. There was some mild spasm. There were no postural abnormalities or ankylosis of the spine. Sensory examination was normal and muscle strength was limited to 4/5 by pain. There was no reported incontinence. The Veteran's symptoms were negative for radiculopathy. There were no [abnormal] neurologic findings. The Veteran was diagnosed with grade 1 retrolisthesis of the L4 on L5, and mild degenerative changes. The examiner stated that the Veteran does have current impairment with limitation of range of motion and gait disturbance, but her multiple psychiatric conditions can at least as likely as not negatively impact her perception of pain. The examiner stated that it is at least as likely as not that the service-incurred back injury did not result in chronic low back pain and back impairment. The examiner opined that it is more likely that the Veteran's current impairment was due to her post service motor vehicle accidents. This opinion was based, in part, on normal clinical findings through approximately 1991 (more than a decade after separation from service). The examiner also noted that the Veteran did not exhibit positive Waddell's sign on examination, but has multiple psychiatric conditions that can at least as likely as not negatively impart her perception of pain. The Veteran underwent another VA examination in April 2013. The examination report reflects that the Veteran reported daily low back pain and use of a back brace and a rollator. She reported that she takes almost daily Vicodin for the pain. The report further reflects that the Veteran had L4-5 mild DJD and retrolisthesis. The examiner stated that based on review of the Veteran's records and examination, it is at least as likely as not that the service-connected back injury did not result in chronic low back pain and back impairment. The examiner based this on the normal back examination findings through approximately 1991. The examiner further stated that it is more likely that her current impairment is a cumulative effect of her post-service motor vehicle accidents. The Veteran denied incontinence and did not report radiculopathy. She reported that she was bedridden for many days in the past 12 months. The examiner noted that flare-ups did not impact the function of the thoracolumbar spine. Upon clinical examination, forward flexion was noted to be to 45 degrees with pain beginning at 0 degrees. Extension was noted to be to 10 degrees with pain beginning at 0 degrees. Lateral flexion was noted to be to 20 degrees bilaterally with pain beginning at 0 degrees. Bilaterally rotation was to 30 degrees with pain beginning at 0 degrees. The limitation of motion was the same after repetitive use testing. The Veteran had localized tenderness or pain to palpation for the joints. The examiner did not note if there was muscle spasm. Muscle strength testing was 5/5. Reflexes were normal at 2+. Straight leg raising was negative. The Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. The Veteran did not have IVDS. The examiner found that the Veteran's current [lumbar spine degenerative joint disease] is at least as likely as not due to post service events and is less likely as not a natural progression of her service connected lumbosacral strain. The examiner also noted that her current low back condition is at least as likely as not related to her post service LS strain and post service DJD and less likely as not due to her service connected strain which did not result in chronic lumbosacral condition. Based on the foregoing, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's service-connected low back syndrome with muscle spasm. The evidence of record is against a finding that the Veteran had forward flexion of the thoracolumbar spine limited to 30 degrees or less, or that she had ankylosis of the entire thoracolumbar spine. As noted above, her forward flexion was 90 degrees in 2006, 40 degrees in 2010, and 45 degrees in 2013. The Board acknowledges that the Veteran reported that she could not try forward flexion in 2007; nevertheless, when she attempted forward flexion in the other years, both prior and subsequent, it was more than 30 degrees. In addition, her symptoms have been clinically found to be linked to nonservice-connected disability. The Board has considered the Veteran's complaints of pain; however, even considering her complaints of pain, she is still not entitled to a rating in excess of 20 percent. Pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id at 43; see 38 C.F.R. § 4.40. In the Veteran's case, the Board has considered the clinical findings with regard to repetitive use and the clinical findings that her current back disability and/or symptoms are not due to her service-connected disabilities. The Board is mindful of the Court's decision in Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), it which the court held that when it is not possible to separate the effects of a service-connected disability from the effects of a nonservice-connected disability, all signs and symptoms are to be attributed to the service-connected disability. However, in the present case, the symptoms have been distinguished on several occasions, as noted above. The Veteran is competent to state that she has pain and weakness; however, she has had some positive Waddell's signs which may indicate a non-organic or psychological component to her pain. She also has diagnosed psychiatric disabilities which have been noted to possibly (at least as likely as not) impact her perception of pain. Importantly, she has also had post service injuries to her back, and has diabetes mellitus. She has not been shown to have the experience, education, or training necessary to distinguish her service-connected disability symptoms from those symptoms related to her post service injuries and disabilities. While she may be competent to report pain and weakness, she is not credible as to the extent of the pain or weakness, or competent to opine as to its etiology(ies). See Cartright v. Derwinski, 2 Vet. App.24, 25 (1991) (see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) and Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011)). The Board has also considered whether the Veteran is entitled to evaluations for neurologic abnormalities. Under the current regulation for the spine, associated objective neurologic abnormalities are evaluated under an appropriate diagnostic code. There is no competent credible evidence of record that the Veteran has bowel or bladder impairment, radiculopathy, or other neurological abnormalities due to her service-connected low back disability. To the contrary, the evidence is against such a finding. Finally, the Board finds that there is also no competent credible evidence of incapacitating episodes as defined by VA regulation. 38 C.F.R. § 4.71a Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Although the Veteran has reported being bedridden, there is no competent credible evidence that this was prescribed by a physician for her service-connected back disability. Moreover, as noted above, the Veteran's current symptoms have been clinical differentiated from her service-connected disability. In sum, the most probative and objective evidence of record is against a finding that the Veteran's service-connected disability warrants a rating in excess of 20 percent. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extra-schedular Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extra-schedular disability rating would be warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) . The discussion above reflects that the rating criteria reasonably describe and contemplate the severity and symptomatology of the Veteran's service-connected low back disability. The criteria consider that there are varying levels of disability, that pain may cause limitation of motion, and that a back disability may cause neurological abnormalities. The Board has considered the Veteran's statements; however, the objective clinical evidence does not reflect that the Veteran has any symptoms, due to her service-connected disability, which have not been considered in the rating criteria. Moreover, the evidence does not reflect that the Veteran's service-connected disability has caused frequent hospitalization or marked interference with work. While the Veteran has reported that she has been bedridden, the evidence of record does not reflect that it is due to her service-connected disability. Therefore, referral for consideration of an extra-schedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). Total rating for compensation purposes based on individual unemployability (TDIU) Entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extra-schedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. In addition, exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The evidence of record, as noted above, is against a finding that a claim for TDIU has been reasonably raised. The competent credible records are negative for a finding that the Veteran was unable to maintain substantial gainful employment due to her service-connected low back disability which has been found to unrelated to her current symptoms. (The record indicates that the Veteran's lack of employment is due to her mental health disabilities. (See January 2006 VA examination report and VA clinical records which reflect polysubstance abuse, borderline personality disorder, schizoaffective disorder, possible bipolar disorder and posttraumatic stress disorder from childhood abuse)). Based on the foregoing, the Board finds that a remand for RO consideration of entitlement to TDIU is not warranted. ORDER Entitlement to an increased evaluation for low back syndrome with muscle spasm, currently evaluated as 20 percent disabling is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs