Citation Nr: 1326855	
Decision Date: 08/22/13    Archive Date: 08/29/13

DOCKET NO. 09-23 356A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to an evaluation in excess of 40 percent prior to January 20, 2010 for lumbar degenerative disk disease (DDD), formerly spondylosis L5.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. Finn, Counsel






INTRODUCTION

The Veteran served on active duty from January 1973 to November 1973.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.

In March 2010, the Veteran was provided with a supplemental statement of the case (SSOC), which increased his lumbar rating from 10 to 40 percent, effective January 20, 2010. While the Veteran subsequently submitted a notice of disagreement (NOD) to the effective date assigned for the 40 percent rating (and was satisfied with the rating assigned), he had already perfected an appeal to his increased rating claim. A dispute as to the effective date assigned for a grant of a staged rating is essentially a dispute as to the rating assigned prior to the effective date of the staged rating. Accordingly, the Veteran's claim for an earlier effective date for the 40 percent rating is already part and parcel of his claim of entitlement to an increased rating for his back condition. 

In an April 2010 rating decision, the Veteran was granted service connection for left leg radiculopathy and assigned a 10 percent rating, effective July 2, 2009.

In an August 2011 rating decision, the rating for left leg radiculopathy was increased from 10 to 20 percent disabling, effective April 19, 2011.

A review of the Veteran's electronic ("Virtual VA") paperless claims file does not reflect additional treatment records. Virtual VA is a highly secured electronic repository used to store and review every document involved in the claims process. 


FINDING OF FACT

Beginning on October 14, 2008 the Veteran's service-connected lumbar DDD was manifested by forward flexion of the thoracolumbar spine of 30 degrees or less.

CONCLUSION OF LAW

Resolving all reasonable doubt in favor of the Veteran, the criteria for a 40 percent evaluation for lumbar DDD, formerly spondylosis L5, have been met for the period beginning on October 14, 2008 but no earlier. 38 U.S.C.A. §§ 1155, 5110(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.400(o)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.132 Diagnostic Code 5243 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).


Before addressing the underlying merits of a claim, the Board generally is required to ensure that VA's duties to notify and assist the claimant with the claim has been satisfied under the VCAA. 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).


Merits of the Claim

The Veteran filed a claim for an increased rating on October 14, 2008. In a January 2009 rating decision, he was granted a 10 percent rating, effective October 14, 2008 under Diagnostic Code 5003. In March 2010, the Veteran was provided with a SSOC, which increased his lumbar rating from 10 to 40 percent, effective January 20, 2010 under Diagnostic Code 5243. 

Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R, Part 4.

The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. See Fenderson v. West, 12 Vet App 119 (1999). Therefore, in matters concerning an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. See Fenderson, 12 Vet. App. 125-26. The Court since has extended this practice even to cases that do not involve initial ratings, so also established ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

Additionally, when evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

The General Rating Formula for Diseases and Injuries of the Spine provides a 40 percent rating when flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 

Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992).

38 C.F.R. § 4.71a, Note (2) provides that for VA compensation purposes, 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a (2012).

If intervertebral disc syndrome (IVDS) is present, a lumbosacral spine disability may also be rated under Diagnostic Code 5243. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25 (2012). See id.

The General Rating Formula for rating IVDS based on incapacitating episodes provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week, but less than two weeks, during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. See id.

Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 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. See id.

Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint involved is not compensably disabling under the appropriate diagnostic codes, a rating of 10 percent is assignable for each major joint or group of minor joints affected by limitation of motion. See 38 C.F.R. § 4.71a; see also Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991) (painful motion of a major joint caused by arthritis is deemed to be limited motion and entitled to a minimum 10 percent rating even though there is no actual limitation).

When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45 (2012). DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).

A November 2008 VA examination reflects that the Veteran reported back pain with numbness to his left leg. Upon physical examination, the VA examiner noted no history of fatigue, decreased motion, stiffness, weakness, spasms, and pain. She stated that there were moderate flare-ups every 3 to 4 months that lasted 3 to 7 days. He had an employment history has a heavy equipment operator. He had difficulty driving distances, prolonged standing, lifting, stamina, carrying, and reaching. The VA examiner stated that there were no abnormal spinal curvatures with any abnormality of the cervical or thoracic sacrospinalis. She reported that flexion was "0 to 90" degrees and extension was "0 to 90" degrees. This appears to be a typographical error because normal range of motion for extension is a maximum of 30 degrees.

The VA examiner reported that the Veteran had tremors and that his reflex response was inconsistent. The VA examiner questioned the Veteran as to whether he drank alcohol. The Veteran stated that he was a social drinker only, which the VA examiner found to be a misrepresentation. The examiner stated that there was no other medical reason found during the "brief" examination that would explain his tremors. The VA examiner further stated that the Veteran's muscles were well-developed, which "prompted the question of his under-the-table employment, to which he answered affirmatively." Radiological studies showed mild degenerative changes in the lower lumbar spine with no evidence of fracture. The Veteran was diagnosed with mild spondylosis. The VA examiner stated that the symptoms of back pain were likely due to a combination of age and overuse caused by a lifetime (over 40 years) of lifting, repairing, and operating heavy equipment. The VA examiner noted that there were effects on ADLS (activities of daily living) that consisted of his inability to do chores, shopping, traveling, feeding, bathing, dressing, toileting, and grooming.

The November 2008 VA examination is diminished of probative value to the extent that the finding for the range of motion of extension appears on its face to not be plausible. Accurate assessment of the Veteran's range of motion is vital when determining whether the Veteran is entitled to an increased rating for his back disability. Therefore, the Board will afford more probative weight to the range of motion findings of the January 2010 VA examination.

A March 2009 Industrial Medicine Examination showed full flexion, extension 0 degrees, lateral flexion of 10 degrees for the left and right, and rotation of 10 degrees at most for the left and right. (See SSA records).

The January 2010 VA examination reflects complaints of low back pain. The Veteran did not use any assistive devices, but had significant limitation on walking. He could walk less than a city block without experiencing back pain. He was not able to do any lifting, pushing, or pulling. He denied bowel and bladder dysfunction. Range of motion of the thoracolumbar spine was flexion 30 degrees (normal 90 degrees), extension 0 degrees (normal 30 degrees), side bending 10 degrees to each side of a normal 30 degrees, rotation 20 degrees to each side of a normal 45 degrees. He complained of pain at extreme ranges of motion. The lumbar spine range of motion and strength was diminished due to a complaint of pain on repetitive motion testing. The extension and degree of which was not possible for the examiner to determine due to extreme subjectivity of the exercise.

A June 2011 joints VA examination for the shoulder, elbow, wrist, hip, knee, and ankle reflects that the Veteran used a cane intermittently and complained of low back pain. He could stand for 15 to 30 minutes, but was unable to walk for more than a few yards. The Veteran was also diagnosed with paralysis of the sciatic nerve.

The Veteran's back disability approximates the criteria for a 40 percent rating for the entire appeal period because the probative medical evidence reflects that he had lumbar DDD manifested by forward flexion of the thoracolumbar spine of 30 degrees or less.

As noted above, in October 2010 the Veteran and his representative essentially stated that the Veteran will be satisfied with the assignment of a 40 percent rating dated back to when the claim was filed. Thus, he has limited his appeal to the assignment of a 40 percent rating and the Board need not consider whether he is entitled to an even higher schedular evaluation under DC 5243 (or any other diagnostic code) or to an extraschedular rating under 38 C.F.R. § 3.321(b) and a separate rating for total individual unemployability (TDIU).

For the reasons stated above, the Board finds that a 40 percent evaluation is warranted beginning on October 14, 2008. Reasonable doubt has been resolved favorably to the Veteran with regard to establishment of the effective date for his 40 percent rating. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

A 40 percent evaluation is granted for lumbar DDD, formerly spondylosis L5, effective on October 14, 2008.


____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs