Citation Nr: 1326913 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 09-25 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a compensable evaluation for lumbar strain. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from July 1970 to April 1974. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. During the pendency of the appeal, jurisdiction was transferred to the New York RO. The Veteran failed to appear for hearings before the RO in July 2009 and the Board in April 2011; consequently, there are no outstanding hearing requests of record. The matter was previously before the Board in October 2011 and remanded for further development and adjudication. In February 2013, the Board referred the matter for a medical expert opinion. VHA Directive 1602-01. The Veteran was provided a copy of the April 2013 VHA opinion and given 60 days to review the opinion and respond with additional evidence or argument. The Veteran did not respond; the Board shall proceed with a decision in the issue on appeal. FINDINGS OF FACT 1. Lumbar spondylosis, lumbar stenosis, and peripheral neuropathy are not related to the service-connected lumbar strain. 2. Throughout the appeal period, the service-connected lumbar strain has not been shown to be manifested by: forward flexion of the thoracolumbar spine not greater than 85 degrees; combined range of motion of the thoracolumbar 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. CONCLUSION OF LAW The criteria for a compensable evaluation for the Veteran's lumbar strain have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5235-5243 (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; 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). The RO provided the Veteran pre-adjudication notice by letter dated in May 2008. The RO provided additional notice of the pertinent rating criteria for disabilities of the lumbar spine in April 2009. VA also has a duty to assist the Veteran in the development of the claim. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, provided the Veteran VA examinations, obtained VHA medical expert opinion, and afforded the Veteran the opportunity to give testimony before the RO and the Board (he failed to appear for both scheduled hearings). All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Rating Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath, 1 Vet. App. at 594. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's statements describing his symptoms and condition are competent evidence to the extent that he can describe what he experiences. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, these statements must be viewed in conjunction with the objective medical evidence and the pertinent rating criteria. The Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). At the outset, the Board would note that effective on September 26, 2003, revisions were made to the VA rating schedule, which established a General Rating Formula for Diseases and Injuries of the Spine. See 68 Fed. Reg. 166, 51454-51458. (August 27, 2003). The Veteran filed his claim in April 2008. Thus, only the regulations effective on September 26, 2003, apply to this claim. The service-connected lumbar strain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237, under the General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243. 38 C.F.R. § 4.71a (2012). Under Diagnostic Code 5237, lumbosacral strain 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, is assigned a 10 percent for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees or 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 ventral body fracture with loss of 50 percent or more of the height. A 20 percent rating is for disability manifested by the following: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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. While the General Rating Formula For Diseases and Injuries of the Spine does identify criteria that would afford a higher rating of 30 percent for disability involving the cervical spine (a 30 percent is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine), it does not provide for a 30 percent rating for disability associated with the thoracolumbar spine. Id An increased rating to 40 percent is warranted when a back disability is manifested by the following criteria: unfavorable ankylosis of the entire cervical spine; forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent is assigned for unfavorable ankylosis of the entire spine. Id. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. III. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record (including Veterans Benefits Management System (VBMS)), which does not contain any additional pertinent information. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Historically, service connection was awarded for back strain in a June 1974 rating decision. An initial noncompensable evaluation, which remains in effect, was assigned effective April 1974. As noted above, the service-connected lumbar strain has been assigned a noncompensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5237, under the General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243, delineated above. 38 C.F.R. § 4.71a (2012). Aside from the General Rating Formula For Diseases and Injuries of the Spine, there are other provisions for rating disability of the spine when certain manifestations are present. These include incapacitating episodes and neurological problems. While there has been some radiographic evidence showing narrowing of disc space, lumbar stenosis (as well as lumbar spondylosis) it has been determined not to be related to the service-connected lumbar strain. See VA examination report dated in June 2008 and VHA Medical Opinion received in April 2013. Additionally, there has been no evidence of incapacitating episodes of intervertebral disc syndrome as defined by the statute to warrant a higher rating under Diagnostic Code 5243. Id. The Board has also considered whether a separate disability rating would be appropriate for neurological findings appropriate to the site of the lumbar spine under the diagnostic codes pertinent to rating neurological disorders. However, the June 2008 VA examiner found that distal symmetric polyneuropathy was not related to service based on chronology, disease course, and clinical and imaging findings. The April 2013 VHA opinion reveals that lumbar radiculopathy and peripheral neuropathy were not related to the service-connected lumbar strain. The expert opinion indicated that radiculopathy occurred as result of the non-service connected spinal stenosis and peripheral neuropathy was an age related degenerative process known to be associated with alcoholism and diabetes (known problems of the Veteran). Complaints of bladder incontinence have been attributed to problems with an enlarged prostate. There are no neurological disabilities associated with the service-connected lumbar strain. The Veteran has not submitted any opinions to refute those already of record. Thus, the Board shall consider the service-connected lumbar strain under the orthopedic diagnostic codes (under the General Rating Formula For Diseases and Injuries of the Spine) only in the instant decision. Having carefully considered the Veteran's claim in light of the evidence of record, as well as the applicable law and regulation, the Board finds that the currently assigned noncompensable evaluation is appropriate and no higher rating is warranted at this time. 38 C.F.R. § 4.7; see Hart, supra. In this regard, private treatment records dated between 2003 and 2007 contain occasional complaints of low back pain. Notes from Dr. M dated in 2006 show an onset of back pain in September 2006. Dr. M indicated range of motion was severely reduced in November 2006, but no exact ranges were provided. VA treatment records dated in October 2007 contain complaints of low back pain. The Veteran was given Motrin and a brace. He was referred for physical therapy. The Veteran was first diagnosed with degenerative joint disease in December 2007. He had full range of motion and his lumbar spine was non-tender. He underwent an initial physical therapy evaluation in January 2008. He complained of intermittent back pain since 1971. Physical examination revealed full range of motion of the lumbar spine without tenderness to palpation along the spine. Straight leg raises were negative. The assessment was low back pain likely due to degenerative disc disease (DDD). The Veteran continued to complain of low back pain in February 2008, March 2008, and April 2008. Records from the Social Security Administration were also reviewed. In May 2008, the Veteran underwent an Orthopedic Examination in conjunction with his claim for disability compensation. At this examination, the Veteran reported having lower back pain since service almost on a continuous basis with radiation of pain bilaterally to both lower extremities. On physical examination, range of motion of the lumbar spine was limited to 45 degrees of flexion and 10 degrees of extension. Lateral bending and rotation were full bilaterally. There was spinal tenderness over the lumbosacral spine without paraspinal tenderness. The sacroiliac joint and sciatic notches were both free of tenderness. There was a mild to moderate degree of spasm in the paravertebral muscles of the lumbosacral region. No scoliosis or kyphosis was noted. Straight leg raises were 60 degrees bilaterally. X-rays of the lumbosacral spine revealed mild levoscoliosis and degenerative spondylosis/degenerative disc disease at T12-L1 through L4-L5. The Veteran was diagnosed with chronic low back pain with bilateral subjective radiculopathy with possible disk herniation at L5-S1. The Veteran underwent a VA spine examination in June 2008. He complained of radiating low back pain. He reported the intensity of his low back pain as 7 out of 10, described as sharp in character. He used a back brace daily. On physical examination, he had full range of motion of the thoracolumbar spine in all planes without pain. There was no additional limitation of function or pain on repetitive motion. There was tenderness over the midline lower back but no spasm. He walked with a "scooped" gait. There was guarding severe enough to result in an abnormal gait, abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. There was levoscoliosis. The examiner reviewed diagnostic testing conducted in November 2007 demonstrating lower lumbar levoscoliosis, questionable retrolisthesis of L4 on L5, and changes of chronic degenerative disease seen diffusely throughout the lumbar spine. The Veteran was diagnosed with lumbar spine spondylosis, retrolisthesis L4-5, and distal symmetric polyneuropathy. Significantly, the examiner opined the Veteran's complaints were less likely than not service related based on chronology, disease course, and clinical and imaging findings. A June 2008 magnetic resonance imaging (MRI) study demonstrated moderate-severe degenerative disc changes throughout the lumbar spine, cauda equine compression at the L2-L3 level, multilevel moderate central canal spinal stenosis, and multilevel neural foraminal impingement. A September 2008 computerized tomography (CT) scan of the lumbar spine showed multilevel degenerative disc disease, significant from L2/L3 to L4/L5 levels. The Veteran had a November 2008 neurosurgery consultation. He complained of a gradual worsening of his back pain over the previous 10 years. He walked with a mild kyphosis and with a cane. Straight leg raising was negative on the right and positive on the left. VA outpatient treatment records dated in November 2010 reveal low back pain was secondary to the non-service connected degenerative joint disease and lumbar stenosis. In April 2013, a VHA expert opinion was received. The expert indicated the Veteran had lumbar spondylosis (DJD) and lumbar spinal stenosis confirmed by CT and MRI studies. The opinion revealed that lumbar spondylosis was a normal age-related degeneration of the spine that occurred in everyone as they aged. Lumbar disc degeneration and bulging, as well as facet DJD, were said not to be the result of any specific injury or occupation, but simply the way the spine normally aged. The expert clearly stated that this was "certainly not related to a lumbar strain, nor [was] it a progression of lumbar strain." He further indicated that lumbar spinal stenosis was a narrowing of the spinal canal that occurred gradually as result of normal gradual worsening of lumbar spondylosis with age. DJD of the lumbar facets resulted in hypertrophy of the joints due to growth of joint spurs adjacent to the facet joint. The hypertrophic spurring combined with hypertrophy of the ligamentum flavum enlarged the facet joint, narrowing the spinal canal, which was called stenosis. Bulging of the lumbar discus, was a component of lumbar spondylosis and not a separate disease, which added to the stenosis by narrowing the central spinal canal, all resulting in the gradual onset of lumbar stenosis. The expert opined "none of this [was] in any way related to, caused by or worsened by a lumbar strain." The VHA opinion further indicated that all the Veteran's current symptoms and functional findings on physical examination were related to his lumbar spondylosis and stenosis. The lumbar spondylosis (DJD) caused low back pain and the stenosis caused claudication - radicular leg pain that progressed gradually to numbness or tingling and sometimes weakness. A lumbar strain was muscular back pain that was of a short duration, several days to several weeks, and was therefore not the cause of any symptoms many years later. The VHA opinion also stated that the Veteran had peripheral neuropathy, which was also an age related degenerative process known to be associated with alcoholism and diabetes. Lumbar radiculopathy was attributed to spinal stenosis; however, the expert opinion indicated that the Veteran's physical examination correlated with a peripheral neuropathy and not a radiculopathy. Nevertheless, neither a radiculopathy nor a peripheral neuropathy was related "in any way to a lumbar strain." The VHA opinion concluded that the Veteran's current lumbar spondylosis and stenosis and peripheral neuropathy were "completely unrelated to his prior lumbar sprain." While there is evidence of range of motion of the lumbar spine limited to 45 degrees of flexion and 10 degrees of extension in May 2008, the reduced motion has not been shown to be due to the service-connected lumbar strain as delineated above. Moreover, at that time lateral bending and rotation were full bilaterally. Thereafter, on VA examination in June 2008 range of motion was full in all planes of the thoracolumbar spine without pain. The Board has considered the complaints of pain experienced in the Veteran's lumbar spine, as well as functional loss due to flare-ups, pain, fatigability, incoordination, pain on movement, and weakness. As explained, the complaints of low back pain have been determined by expert opinion to be due to the non-service connected lumbar spondylosis and stenosis. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-7. There was no evidence of lack of endurance, weakness or incoordination of the lumbar spine at any time due to the service-connected lumbar strain. Id. The Board has also considered a higher rating under Diagnostic Code 5003 for degenerative arthritis; however, degeneration of the lumbar spine has not been shown to be due to the service-connected lumbar strain. Moreover, the Veteran's lumbar strain is already rated based on limitation of motion as delineated above. 38 C.F.R. § 4.71a. In sum, a compensable rating, to include "staged" ratings, is not warranted as the evidence does not show lumbar strain productive of symptomatology consistent with the requisite incapacitating episodes of intervertebral disc syndrome, neurological manifestations, or limited motion of the lumbosacral spine, muscle spasm, guarding, or localized tenderness. 38 C.F.R. § 4.71a; Hart, supra. Should the Veteran's disability picture change in the future, he may be assigned a higher rating. See 38 C.F.R. § 4.1. The evidence is not in relative equipoise. Thus, the preponderance of the evidence is against the claim, and the appeal must therefore be denied. 38 U.S.C.A § 5107(b). Finally, the Board has considered whether referral for extraschedular consideration is indicated. The evidentiary record does not show any manifestations of, or functional impairment due to lumbar strain that is not encompassed by the schedular criteria. The reported complaints of pain and decreased motion have not been shown to be due to the service-connected lumbar strain and even if they were, they are fully contemplated by the schedular criteria. The Veteran has not had any hospitalization for his lumbar strain. The Veteran was adjudged disabled by the Social Security Administration as of October 2008 primarily due to affective and mood disorders. As there is also no objective evidence, or allegation, suggesting that the schedular criteria are inadequate, the Board finds that the schedular criteria clearly encompass the symptoms and impairment shown and referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). There is also no evidence (or allegation) that the Veteran's lumbar stain has rendered him unemployable or would render him unemployable if he were to seek employment. Accordingly, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to a compensable evaluation for the service-connected lumbar strain is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs