Citation Nr: 1326900 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 09-02 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to a rating in excess of 40 percent for low back strain for the period beginning June 10, 2009. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1994 to March 1998. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The Veteran testified before the undersigned Veterans Law Judge at an October 2010 video teleconference hearing, and before a decision review officer (DRO) at the RO in May 2009; transcripts of each of those proceedings are associated with the claims file. The issue of entitlement to a rating in excess of 40 percent for a low back strain from June 2009 was previously before the Board in January 2011, at which time it was remanded for further development. The evaluations to be assigned for earlier periods were decided at that time. While the case was undergoing remand development, service connection was granted for a left lower extremity radiculopathy secondary to the lumbar spine disorder was granted. A 10 percent rating was assigned. There is no recorded disagreement with that action and the matter is not before the Board at this time. The issue of entitlement to TDIU 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 From June 10, 2009, the Veteran's low back strain has not manifested in unfavorable ankylosis of the thoracolumbar spine, and has not induced incapacitating episodes having a total duration of at least 6 weeks due to intervertebral disc syndrome during any 12-month period. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for a low back strain for the period beginning June 10, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Here, the Veteran was sent a letter in February 2008 that fully addressed all VCAA notice elements for increased rating claims and was issued prior to the initial RO decision in this matter. 38 C.F.R. § 3.159(b)(1); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, no further development is required with respect to the duty to notify. VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Veteran has been provided VA examinations in June 2009 and February 2011. The Veteran's statements in support of the claim are of record, including testimony provided at an October 2010 videoconference hearing before the undersigned. The Board hearing focused on the elements necessary to substantiate his increased rating claim and the Veteran, through his testimony and his representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2012), and that the Board can adjudicate the claim based on the current record. The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 38 C.F.R. § 3.159(c). Disability Ratings 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. 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). In claims for increased rating VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function, however, will be expected in all instances. 38 C.F.R. § 4.21. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Spine disabilities are appropriately rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula, Diagnostic Codes 5235-5243), 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. Under this formula, 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, Diagnostic Code 5237, General Rating Formula. 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, General Rating Formula, Note 2. Further, all measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note 4. Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is in flexion or extension, and the ankylosis results in 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; and/or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) is considered favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula, Note 5. Objective neurologic abnormalities associated with a spine disability are to be separately rated under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note 1. Where a spine disability is manifested by intervertebral disc syndrome, the disc disease may be rated based on limitation of motion, as delineated above, or alternatively, based on the cumulative amount of time in which the condition was incapacitating over the prior 12 months. 38 C.F.R. § 4.71a. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), Note 1. At the time of the June 2009 VA examination, the Veteran had 30 degrees of thoracolumbar flexion (reduced to 5 degrees with repetitive motion), and 5 degrees of extension. The examiner specifically noted that the Veteran did not have thoracolumbar ankylosis. There was pain throughout his range of motion. Severe flare-ups occurred weekly and would last for hours, alleviated by rest and medications. There were no incapacitating episodes of spine disease, and the Veteran endorsed normal bowel action and volitional control. During a pain management session in June 2010, the Veteran denied bowel or bladder impairment, but indicated that he experienced groin pain. Testifying at his October 2010 videoconference hearing, the Veteran indicated that his back disability incapacitated him one or two days per week. He testified that he wore a brace for his back, and that he used a cane at times. He described painful bowel movements, and indicated that he could only go once or twice per week. Concerning his bladder, he stated that sometimes he "drip[ped] a little bit." At a February 2011 VA examination, the Veteran reported continued, progressive worsening of low back pain, with pain and paresthesias in the lower left extremity. He denied numbness, tingling, paresthesias, or pain radiating into the right lower extremity. The Veteran did not experience urinary incontinence or retention. He did not experience erectile dysfunction, but sexual relations were painful due to his lower back pain. He also experienced increased pressure in the sacral area during bowel movements. Flare-ups of lumbar spine pain occurred at least several times weekly, lasting from hours to slightly over 24 hours. During flare-ups, he generally had to remain inactive and often had to maintain chair or bed rest; he perceived limited motion of the spine during such flares. He claimed incapacitating episodes at least once per week when he had to stay at home for bedrest, "usually for most of the rest of the day after the pain has worsened." His bedrest was solely on a self-prescribed basis; the Veteran denied having called a physician or receiving medical care during his claimed incapacitating episodes, but indicated that a physician had told him that he needed to rest during those events. He also claimed that he had episodes where he had to go to urgent care for parenteral analgesics because of severe back pain, and then upon returning home, to maintain bed rest. He frequently used a back brace, especially when out of his home, and had a cane that he used "fairly constantly" for stability and support. He was unemployed, and the report suggests that his unemployment may have been related to his spine disability; this is discussed in more detail in the remand section, below. Physical examination revealed forward flexion of the thoracolumbar spine to 25 degrees, and extension to 5 degrees. All movements involved resistance, extensive guarding, and pain. Following repetitive motion testing, the Veteran was in increased pain, but there were no changes in the measured range of motion. The examiner opined that it would be feasible to expect that the Veteran would lose an additional 10-15 degrees of forward flexion during flare-ups. The examiner noted no evidence of spinal ankylosis. He diagnosed the Veteran with chronic lumbar strain, with associated degenerative disk disease at L5-S1. During May 2011 treatment, the Veteran indicated that he had two or three bowel movements per day. The treating provider indicated that it was a possible bowel spasm, but made no suggestion that the spasm was related to the spine disability. Later in May 2011, the Veteran reported to the emergency department for worsening back pain. At that time, he denied bowel or bladder incontinence or retention. He had no problems with abdominal pain, diarrhea, constipation, blood in the stool, or black color stool. He received an examination, but the treatment report indicated that physical examination was unremarkable other than the positive straight leg raise on the left lower extremity. Under the applicable rating criteria, for a rating in excess of 40 percent for a thoracolumbar spine disorder, the Veteran must demonstrate unfavorable ankylosis of the spine. As discussed above, ankylosis is a condition in which an entire spinal segment is immobile and fixed in position, and unfavorable ankylosis exists where the fixation is in flexion or extension, and the ankylosis results in particular difficulties identified by the General Rating Formula. 38 C.F.R. § 4.71a, General Rating Formula, Note 5. The evidence before the Board includes no suggestion that the Veteran suffers from ankylosis. All examiners who have addressed ankylosis have found that the condition did not exist in the Veteran. Thus, a higher rating under the General Rating Formula is not warranted. Additionally, although the Veteran has at times indicated that he experiences pain during bowel movements and limited frequency, there is no evidence that the Veteran has any separately diagnosed, objective neurological abnormalities other than the radiculopathy of the left leg, for which the Veteran is separately rated. 38 C.F.R. § 4.71a, General Rating Formula, Note 1. The Board particularly notes that according to the most recent treatment report that addresses the existence of bowel/bladder symptoms, which occurred in May 2011, the Veteran denied constipation, bowel incontinence, and bladder incontinence, and physical examination was unremarkable. Considering the Formula for Rating Intervertebral Disc Syndrome, the Board notes although the Veteran reports that he has required periods of bed rest due to his lumbar spine flare-ups, he has not been diagnosed with intervertebral disc syndrome. Applying the criteria despite the lack of IVDS diagnosis, there is no evidence that the Veteran has been prescribed bed rest by a physician. See 38 C.F.R. § 4.71a, IVDS Formula, Note 1. Even if the Veteran received treatment by a physician for back pain as he indicated at his February 2011 examination, mere treatment is not the equivalent of being prescribed bed rest. Id. Therefore, the Board finds that the Veteran's low back strain disability does not warrant a rating in excess of 40 percent at any time during the period beginning June 10, 2009. 38 C.F.R. § 4.71a. Extraschedular The Board has also considered whether the Veteran's low back strain presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case there are no exceptional or unusual factors with regard to the Veteran's low back strain. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (holding that the "rating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. There is no suggestion that the Veteran has required periods of hospitalization. To the extent that the disability has caused interference with his employment, the issue of entitlement to TDIU is being remanded. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration (other than TDIU, as discussed below) is not warranted. ORDER Entitlement to a rating in excess of 40 percent for low back strain for the period beginning June 10, 2009 is denied. REMAND In the prior remand, the Board referred a claim for TDIU on an extraschedular basis, based on the Veteran's statements concerning employment problems. In accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009), a Veteran's claim for an increased disability rating may require a determination as to whether he is entitled to a total disability rating based on individual unemployability. Entitlement to individual unemployability is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Thus, although the Board previously referred the claim, under the governance of Rice, such a claim is instead remanded. The Veteran was unemployed at the time of the June 2009 VA examination, and indicated in his May 2009 DRO hearing that his back condition was preventing him from learning a trade and going to work. As of the February 2011 examination, he indicated that he was still unemployed. Although there are indications in more recent treatment records that he has attempted to start his own business, the record is not clear as to whether the totality of the Veteran's service-connected disabilities have prevented him from securing or maintaining substantially gainful employment. He currently maintains a 50 percent disability rating, and thus does not meet the criteria for consideration of TDIU on a schedular basis. See 38 C.F.R. § 4.16(a) (2012). He may warrant TDIU on an extraschedular basis, but the Board cannot make such a determination in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (providing that the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA's Director of Compensation and Pension if such consideration is warranted). The claim must therefore be remanded for such a referral. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination as to the effect of his service-connected disabilities on his employability. The claims folder must be made available for the examiner to review. The examiner is then requested to provide a detailed explanation of the functional impairment caused by the service connected disabilities. In providing the requested opinion, the examiner must consider the degree of interference with the capacity for employment caused solely by the Veteran's service-connected disabilities, as distinguished from any nonservice-connected disabilities including his psychiatric disabilities. The requested opinion must also take into consideration the relevant employment and educational history. 2. Then, review any additional evidence and readjudicate the issue of entitlement to a TDIU, including consideration of whether referral to the Director for extraschedular consideration is warranted. Consideration should also be given to whether a social and industrial study or a vocational rehabilitation assessment should be obtained. 3. If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures, including issuance of a supplemental statement of the case. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs