Citation Nr: 1326824 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 10-23 623 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an initial rating in excess of 20 percent for lumbar spine strain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from November 2006 to July 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), that granted service connection for the Veteran's back disability with an evaluation of 20 percent effective July 31, 2009. FINDING OF FACT The Veteran's lumbar spine strain has manifested with pain and forward flexion to no less than 50 degrees, including upon repetitive motion; without ankylosis, incapacitating episodes due to intervertebral disc syndrome (IVDS), or objective evidence of neurological involvement of the lower extremities due to the Veteran's back disability. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for lumbar spine strain have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237, 5243 (2012). Notice and Assistance The appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records and VA medical treatment records have been obtained; he did not identify any outstanding medical treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in August 2009 and November 2012; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c)(4); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Sanders, 129 S. Ct. 1696; see also Dingess/Hartman, 19 Vet. App. at 486. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks an initial rating for lumbar spine strain in excess of 20 percent. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. § 4.7. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is propriety of the initial evaluation assigned, evaluation of all the medical evidence since the grant of service connection is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, consideration of the appropriateness of "staged rating" must be given. Id. Under the General Rating Formula for Diseases and Injuries of the Spine, the disability is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormality is to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DC 5237, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a, DC 5237, Note 2. All measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, DC 5237, Note 4. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). According to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes: A 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Note 1: For purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The rating schedule provides guidance for separately rating neurologic impairment. See Note (1) of the General Rating Formula of Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Ratings for paralysis of the sciatic nerve are set forth at 38 C.F.R. § 4.124A, DC 8520. A 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is assigned for moderately severe incomplete paralysis. A 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. An 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, DC 8520. Diagnostic Code 8620 refers to neuritis of the sciatic nerve, and DC 8720 refers to neuralgia of the sciatic nerve. The Veteran's service treatment records document low back pain and complaints of right lower leg paresthesias. The Veteran received physical therapy from the Camp Kinser SMART Clinic. Physical therapy reports in September, August and October of 2008 showed full range of motion with minimum to moderate pain and no radiculopathy. At a March 2009 service medical examination, the Veteran described recurrent back pain with radiation to his lower extremities. On physical examination, he had no obvious deformities. Thoracolumbar spine range of motion included: forward flexion to 50 degrees, extension to 110 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 20 degrees. No neurologic defects were noted. The examiner concluded that an MRI showed evidence of L5-S1 disc herniation and radiation. At a May 2009 service medical examination by the Physical Evaluation Board, the Veteran reported that he was unable to work as a welder due to the occasional requirement for heavy lifting and prolonged standing. His inability to perform his primary duties resulted in his assignment to an administrative position. On physical examination, he had no abnormalities. Thoracolumbar spine range of motion included: forward flexion to 50 degrees, extension to 10 degrees, and right and left lateral rotation to 20 degrees. No neurologic defects were noted. The examiner diagnosed low back pain and degenerative disc disease. At an August 2009 VA examination, the Veteran reported low back pain with flares on bending, walking, and twisting. The Veteran denied any incapacitating episodes requiring bed rest. He reported a decreased range of motion with his daily activities, but denied fatigue or weakness in the back area. On physical examination, he had normal reflexes and sensorimotor facilities. Thoracolumbar spine range of motion included: forward flexion to 65 degrees, extension to 25 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 30 degrees. The Veteran reported pain at the end of each motion, but he had no loss of function on repetitive use. The examiner reported no guarding, but noted some lordosis. An X-ray of the lumbosacral spine was normal. The examiner diagnosed bulging lumbar disc with radiculopathy. The Veteran received physical therapy at VAMC Kansas from September 2009 to November 2009. He reported that his low back pain decreased throughout treatment. A September 2009 VA physical therapy consultation, an MRI was described as unremarkable with no protrusions or herniations. The MRI showed no abnormalities, no evidence of spinal stenosis, normal alignment of the lumbar spine, and that the discs were well maintained. At a November 2009 VA neurosurgery consultation the Veteran reported that his low back pain radiated to lower extremities and caused occasional numbness of the foot. On physical examination, he had some lumbar paraspinal muscle spasms bilaterally. X-rays and an MRI of lumbar spine were unremarkable. The Veteran was able to flex his torso forward at the waist to about 45 degrees and bend laterally to about 30 degrees with mild-to-moderate pain. A December 2009 VA medical treatment record shows that range of motion of the thoracolumbar spine was within full limits on all planes with complaints of pain. An addendum reported recovery from standing flexion was performed with guarding and complaints of pain. X-rays of the Veteran's lumbosacral spine, dated in September 2012, showed no evidence of fracture, arthritic change, or other bone abnormality. Alignment of the intervertebral disc space appeared normal. At a November 2012 VA examination, the Veteran reported low back pain and occasional flares. As a bouncer, his back gets sore when he takes the trash out. He occasionally wears a back brace. Impressions of the lumbosacral spine showed no evidence of fracture, arthritic change or other bone abnormality. Alignment of the intervertebral disc space appeared normal. On physical examination, thoracolumbar spine range of motion included: forward flexion to 85 degrees, extension to 25 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. On repetitive motion, the thoracolumbar spine range of motion included: forward flexion to 70 degrees, extension to 15 degrees, right lateral flexion to 25 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. Painful motion began at 65 degrees of forward flexion, 25 degrees of extension, 15 degrees of right lateral flexion, and 20 degrees of left lateral flexion. Additional limitation in range of motion was attributed to painful movement. The examiner opined that the Veteran did not have any functional loss or functional impairment of the thoracolumbar spine. The Veteran had no guarding or muscle spasm, normal strength, normal reflexes, and his sensory facilities were normal. The examiner reported radiculopathy of the right lower extremity with mild intermittent pain, paresthesias or dysesthesias, and numbness. No other neurological abnormalities were reported. The Veteran had no IVDS or arthritis. The examiner opined that while the Veteran reports radicular symptoms, there is no evidence that they are related to his back condition. The Veteran's lumbar spine strain is currently rated at 20 percent pursuant to 38 C.F.R. § 4.71a, DC 5237. To merit a disability rating of 40 percent, the next highest possible rating, requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The March and May 2009 service medical examinations, a November 2009 VA neurosurgery consultation, a December 2009 VA medical treatment record, and VA examination reports from August 2009 and November 2012 show forward flexion of the Veteran's thoracolumbar spine measured no less than 50 degrees, even with consideration of Deluca. There was no evidence of ankylosis of the entire thoracolumbar spine. For these reasons, the criteria for a rating higher than 20 percent are not met under the general formula. Alternately, a showing of IVDS with incapacitating episodes having a total duration of at least 4 weeks during the past 12 months warrants a 40 percent rating. There is no evidence of physician-prescribed bed rest for a period of at least 4 weeks at any time during the appeal period in question. Accordingly, a higher rating may not be assigned under DC 5243 on the basis of incapacitating episodes. The rating criteria provide for separate ratings for neurologic and orthopedic manifestations. During diagnostic tests in May 2009, September 2009, September 2012, and November 2012, the Veteran reported that his low back pain radiated to his lower extremities. A November 2012 VA medical examination report outlines each of the aforementioned diagnostic tests and reports that they show no objective evidence of neurological abnormalities associated with the service-connected lumbar spine strain. This opinion was based on a review of the claim file, a physical examination, and an interview with the Veteran. The Veteran's subjective complaints are not supported by clinical findings. As the Board attributes more probative value to medical opinions based on objective findings than the subjective complaints of the Veteran, a separate rating for neurologic manifestations is not warranted. Due consideration has been given to Hart v. Mansfield, 21 Vet. App. 505 (2007); however a higher evaluation is not warranted for any portion of the time period under consideration. The rating criteria adequately contemplate the manifestations of the Veteran's lumbar spine strain. This case does not present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The lumbar spine disability is primarily productive of pain and limited motion. The respective manifestations are contemplated in DC 5237 and are adequate to evaluate the Veteran's disability. Therefore, referral for consideration of extraschedular rating is not warranted. The Board also considered whether a claim of total disability based on individual unemployability was inferred in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). As the Veteran is currently employed as a bouncer, Rice is not applicable. The preponderance of the evidence is against the claim for an initial rating in excess of 20 percent for lumbar spine strain; there is no doubt to be resolved; and an initial rating in excess of 20 percent for lumbar spine strain is not warranted. ORDER Entitlement to an initial rating in excess of 20 percent for lumbar spine strain is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs