Citation Nr: 1326888 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-06 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to a compensable rating for fracture of the spinous process, L2-L3. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD J. Young, Associate Counsel INTRODUCTION The Veteran had active military service from April 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Board notes that the Veteran requested a Travel Board hearing in March 2011; however, on the same form in which the hearing was requested, the Veteran also indicated that he did not want a Board hearing. The Board contacted the Veteran's representative to clarify whether the Veteran requested a hearing in furtherance of his claim. In a letter dated in July 2013, the Veteran's representative clarified that the Veteran did not want a Travel Board hearing. Therefore, the Board will proceed with adjudicating the Veteran's claim. FINDINGS OF FACT The Veteran's service-connected fracture of the spinous process, L2-L3 has healed, and it is not productive of significant symptoms or impairment. CONCLUSION OF LAW The schedular criteria for a compensable disability rating for service-connected fracture of the spinous process, L2-L3, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5299-5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2012); 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). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). VA also has a duty to assist the Veteran in the development of a claim, which is not abrogated by the granting of service connection. The RO provided the Veteran with substantially compliant notice by a letter dated in April 2010. Subsequent to the August 2010 rating decision, the Veteran was afforded the opportunity to provide additional evidence in furtherance of his claim and his claim was most recently readjudicated in August 2012. Regarding the VA's duty to assist, the Veteran's claims file contains his service treatment records (STRs), VA treatment records, and VA examination reports. The RO afforded the Veteran VA examinations, during which VA examiners addressed the severity of the Veteran's spinous process, L-2 to L-3 disability, in May 2010, in July 2011, and in July 2012. During the Veteran's July 2012 examination, the VA examiner noted that the Veteran's range of motion (ROM) was not appropriately tested "because the Veteran was not cooperative in the ROM examinations and seemed to [be] extremely exaggerating his limitation in range of movements." See July 2010 VA Examination. The Board notes that, while VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). When considering the July 2012 VA examination along with the Veteran's prior pertinent VA examinations, including the October 2011 examiner clarification of the May 2010 examination, the Board finds that the examinations were adequate to allow proper adjudication of the issue on appeal. The Board notes that the Veteran contends that his VA examinations were inadequate because a Magnetic Resonance Imaging (MRI) scan was not conducted. VA examiners conduct medical tests that are deemed medically necessary to provide medical opinions based on their knowledge, skill, and experience. In this case, the examiners who conducted all three of the Veteran's VA examinations considered x-ray views of his spine as the proper diagnostic test and the record does not indicate that the Veteran has the requisite knowledge to indicate the best diagnostic testing to determine the severity of his disability. See May 2010 VA Examination; see also July 2011 VA Examination; see also July 2012 VA Examination. Therefore, the Board finds that the VA examinations are adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the Board concludes that all evidence has been properly developed. II. Legal Criteria Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. See generally 38 C.F.R. §§ 4.1, 4.2. Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7. Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. Where there is a question as to which of two ratings shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that 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 appellant. 38 C.F.R. § 4.3. Spinal disabilities are generally rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), which applies to diagnostic codes (DC) 5235 to 5243, unless DC 5243 is evaluated under the IVDS Formula (Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). 38 C.F.R. § 4.71a, General Rating Formula, preliminary note. Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. Under the General Rating Formula, a 10 percent evaluation is for application with forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, DC 5237 (2012). A 20 percent evaluation is for application with 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. Id. A 40 percent evaluation is for application when forward flexion of the thoracolumbar spine is 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is for application when there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is for application when there is unfavorable ankylosis of the entire spine. Id. Note (1), which follows the rating criteria, provides for the evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Intervertebral disc syndrome (IVDS) is evaluated under the General Rating Formula for Disease and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. Id. Note (2) to the General Rating Formula explains 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 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 thoracolumbar spine is 240 degrees. The Board must also consider a Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. 38 C.F.R. §§ 4.40, 4.45; See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. III. Factual Background In a March 1972 rating decision, service connect was granted for the Veteran's fracture of the spinous process, L-2 to L-3 disability and a noncompensable disability rating was assigned, effective January 1972. The Veteran submitted a claim for an increased rating in April 2010. In May 2010, the Veteran was afforded a VA examination; the examination report reflects that the Veteran could forward flex to 90 degrees and extend backwards to 30 degrees, flex laterally 30 degrees to either side and rotate 30 degrees to either side without pain. The Veteran's range of motion was indicated as "normal." The Veteran did not have an abnormal gait or abnormal spinal contour due to muscle spasms. The Veteran did not have additional limitation of motion or pain with repetitive motion. The Veteran was diagnosed with degenerative joint disease (DJD) of the lower lumbar spine. The VA examiner opined that the Veteran's DJD of the lumbar spine is not related to the spinous process fracture sustained in military service; the DJD is mild and symmetrical and at lower levels of the lumbar spine from the spinous process fracture. The examiner also indicated that spinous process fractures are usually caused by a direct blow which typically would not cause problems at a lower level as opposed to axial loading which can be transmitted to a level above and below the level of the injury. See May 2010 VA Examination. During a July 2011 VA examination, the Veteran reported that he was diagnosed with DJD and he denied any neurologic symptoms. The Veteran did indicate experiencing bilateral radiating pain to his fingers and lower legs, with symptoms worse during prolonged sitting. The Veteran reported using a cane as an assistive device. The Veteran gave a history of constant flare-ups. The Veteran indicated experiencing a prior incapacitating episode; however, no additional information was provided. On examination, the Veteran was able to forward flex to 40 degrees without objective evidence of pain. There was no additional functional limitations, including loss of range of motion, during flare-ups, or secondary to repetitive painful motion, weakness, and excessive fatigability, lack of endurance or in coordination. The Veteran did not have functional loss or impairment following repetitive-use testing. The examiner opined that the Veteran's reported bilateral radiating pain to his fingers and toes is not by or the result of the "compression fracture L3-4" he sustained during military service. The rationale for the opinion was that the sensory nerve innervation and radiculopathy of L2-L4 is mostly the anterior thigh. Back pain that presents itself with radiation down the lateral aspects of the leg into the foot is mostly L5 and this may be related to the Veteran's mild DJD. The examiner noted that the service-connected fracture of the spinous process was stable and was not even reported on his X-ray. He stated that the fracture had resolved and his current DJD was of a different pathology. He noted that the DJD was age related and common in individuals over age 50. See July 2011 VA Examination. In October 2011, the July 2011 VA examiner provided a clarifying statement to the RO regarding the Veteran's July 2011 examination. The examiner concurred with the opinion of the May 2010 VA examiner and stated that the Veteran's DJD is not due to or aggravated by the Veteran's service-connected spinous process, L-2 to L-3 disability. The examiner added that the Veteran's fracture during military service had resolved itself and that the Veteran's DJD is a different pathology that is a result of the age-related degenerative process. The examiner explained that the Veteran's self-reported incapacitating episode was not objectively supported as there was no medical indication that he a period of acute signs and symptoms that required bed rest prescribed by a physician as well as treatment by a physician. The examiner also explained that the Veteran's vertebral tenderness to palpation of the left lower back was not associated with either the fracture, spinous process, L-2 and L-3 or DJD, because the fracture has "completely resolved and there is not soft tissue tenderness associated with this condition as the vertebral fracture affects the bony process and not the soft tissue." The examiner stated that the Veteran's reduced range of motion is associated with his DJD and not his fracture, spinous process, as the DJD is the active condition affecting his lumbar spine. See October 2011 Clarification Statement. In July 2012, the Veteran was afforded a VA examination. The Veteran reported that in 2007 he began to feel radiating pain to the fingers and toes associated with constant non-specific diffused headache; he also reported that due to those symptoms, the Veteran was "let go from his job as a pipe-fitter" in 2007 due to "slowness to complete tasks, backache, and fingers/toes aches upon standing. " During the Veteran's July 2012 VA examination, the Veteran could forward flex to 45 degrees with no objective evidence of painful motion; the Veteran's degree of forward flexion was the same degree following repetitive motion. The VA examiner noted that Veteran's range of motion could not be appropriately tested because the Veteran was not cooperative during the examination and seemed to extremely exaggerate his limitation in range of motion. No arthritis was indicated during imaging studies. The Veteran had functional loss or impairment following repetitive-use testing in July 2012. The Veteran indicated that he continued to use a cane occasionally as an assistive device; however, the examiner noted that the Veteran was observed walking "just fine without one." The VA examiner opined that the Veteran's current complaints or claims are not directly or secondarily related to his current service connected spinous process, L-2 to L-3 disability. See July 2012 VA Examination. IV. Analysis Increased Rating Having fully considered the evidence, the Board concludes that a compensable rating of 10 percent or greater is not warranted for the Veteran's current service-connected fracture of the spinous process, L-2 to L-3 disability at any time during this appeal period. The pertinent evidence of record fails to show that the Veteran's forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour or vertebral body fracture with loss of 50 percent or more of the height, as due to his service-connected disability. The Veteran's May 2010 VA examination report reflects that Veteran could forward flex to 90 degrees and extend backwards to 30 degrees, flex laterally to 30 degrees to either side and rotate 30 degrees to either side without pain. The Veteran's range of motion was indicated as "normal." The Veteran did not have additional limitation of motion or pain with repetitive motion. The Veteran was diagnosed with DJD of the lower lumbar spine; the VA examiner opined that the Veteran's DJD of the lumbar spine is not related to the spinous process fracture sustained in military service. See May 2010 VA Examination. During a July 2011 VA examination, the Veteran was able to forward flex to 40 degrees without objective evidence of pain; there was also no additional functional limitations, including loss of range of motion, during flare-ups, or secondary to repetitive painful motion, weakness, and excessive fatigability, lack of endurance or in coordination. See July 2011 VA Examination. Significantly, however, the examiner also indicated that the Veteran's current service-connected spine fracture disability has resolved itself and that any reduction to the Veteran's range of motion is associated with his non-service connected degenerative joint disease. See October 2011 VA Examiner Clarification. During the Veteran's July 2012 VA examination, the Veteran could forward flex to 45 degrees with no objective evidence of painful motion; the Veteran's degree of forward flexion was the same degree following repetitive motion. The VA examiner noted that Veteran's range of motion could not be appropriately tested because the Veteran was not cooperative during the examination and seemed to extremely exaggerate his limitation in range of motion. The Veteran had functional loss or impairment following repetitive-use testing in July 2012. Significantly, however, the VA examiner opined that the Veteran's current complaints or claims are not directly or secondarily related to his current service connected spinous process, L-2 to L-3 disability. See July 2012 VA Examination. All three VA examinations indicated that Veteran did not have ankylosis, either favorable or unfavorable. None of the Veteran's pertinent treatment records, or his contentions, indicate that he has ankylosis of the spine. Furthermore, none of his treatment records show limitation of motion to the degree contemplated for by ratings criteria due to his service connected disability. Thus, the evidence does not indicate that a compensable rating based on limitation of motion is warranted at any time during this appeal. With regard to any other neurologic abnormalities or findings, the evidence of record does not support a finding that the Veteran has any bowel or bladder symptoms due to his spinous process, L-2 to L-3 disability. With regard to Intervertebral Disc Syndrome (IVDS) and incapacitating episodes, the Veteran reported one episode to the July 2011 VA examiner; however, the record is silent as to the details of the alleged episode. In an October 2011 statement, the July 2011 VA examiner clarified that the Veteran reported that he experienced an incapacitating episode, however, the Veteran's assertion was not objectively supported as there was no medical indication that he had a period of acute signs and symptoms that required bed rest prescribed by a physician as well as treatment by a physician. The Veteran did not report a history of incapacitating episodes to the July 2012 VA examiner. Based upon the evidence, the Board finds that a rating under the IVDS is not warranted. See 38 C.F.R. § 4.71a, Note 1. The Board finds that the Veteran's fracture of the spinous process L-2 to L-3 disability does not warrant a compensable rating as the medical evidence indicates that the Veteran's non service-connected degenerative joint disease is the cause of his current symptomology. The evidence fails to show that the Veteran's fracture of the spinous process L-2 to L-3 disability has worsened in any way; the medical evidence indicates that the Veteran's fracture of the spinous process L-2 to L-3 disability has actually resolved. See July 2011 VA Examination. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). For these reasons, the Board finds that the criteria for a compensable rating fracture of the spinous process, L-2 to L-3 have not been met. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, medical evidence indicates that the Veteran's symptoms are due to a nonservice-connected disability. Therefore, referral for consideration of an extra-schedular rating is not warranted. Thun, 22 Vet. App. 111. TDIU TDIU may be assigned when the Veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities (without regard to age). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular- renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a) . The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability". Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran's nonservice-connected disabilities on his ability to function. While the Veteran contends that his back pain and limited range of motion resulted in his retirement from pipefitting, VA examiners opined that the Veteran's symptoms are related to his non-service connected degenerative joint disease. See July 2012 VA Examination. Based on the foregoing, the Board finds that further consideration of entitlement to TDIU is not warranted. ORDER A compensable rating for fracture of the spinous process, L2-L3 is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs