Citation Nr: 1326933 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 08-24 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 20 percent prior to November 8, 2010, and in excess of 40 percent since July 1, 2011, for L-2 injury residuals with wedging deformity and lipping and degenerative changes. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from February 1953 to July 1973. This appeal to the Board of Veterans' Appeals (Board) arises from an October 2007 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that denied a rating in excess of 20 percent for L-2 injury residuals with wedging deformity and lipping and degenerative changes. In March 2009, the Veteran and his wife testified at a Board hearing before the undersigned Veterans Law Judge at the RO. In April 2009 and January 2011, the Board remanded the appeal to the RO via the Appeals Management Center (AMC) for further evidentiary and due process development. In a February 2011 rating decision, the RO granted a temporary total evaluation for surgical treatment necessitating convalescence effective November 8, 2010, and continued the prior 20 percent rating from March 1, 2011. In a July 2011 rating decision, the RO granted a three-month extension of the temporary total evaluation and continued the 20 percent rating from July 1, 2011. In a December 2011 rating decision, the AMC increased the rating for the disability on appeal to 40 percent effective July 1, 2011. As that increase did not represent the maximum rating available, the issue remained in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). Given the above, the rating period on appeal is as listed on the title page. In May 2012, the Board again remanded the appeal to afford the Veteran a VA examination. He was afforded an examination in June 2012 and a review of the record reflects that there has been substantial compliance with the remand. See Dyment v. West, 13 Vet. App. 141 (1999). Lastly, in the December 2011 rating decision, the AMC also granted service connection for neurogenic bladder, assigning a 20 percent rating effective March 18, 2011; and granted service connection for sciatica of the right lower extremity, assigning a 10 percent rating effective March 22, 2010. In a February 2013 rating decision, the AMC increased the rating for sciatica of the right lower extremity to 40 percent and granted service connection for radiculopathy of the left lower extremity, assigning a 10 percent rating, both effective June 30, 2012. As the Veteran has not expressed disagreement with any of the above disability ratings or effective dates, those issues are not before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Prior to November 8, 2010, the Veteran's lumbar spine disability had not been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least 4 weeks during any 12-month period. 2. Since July 1, 2011, the Veteran's lumbar spine disability has not resulted in unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least 6 weeks during any 12-month period. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent prior to November 8, 2010, for L-2 injury residuals with wedging deformity and lipping and degenerative changes have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5237 (2012). 2. The criteria for a rating in excess of 40 percent since July 1, 2011, for L-2 injury residuals with wedging deformity and lipping and degenerative changes have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the duty to notify requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). In this case, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. The Veteran was notified via letter dated in April 2007 of the criteria for establishing an increased rating, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates. This letter accordingly addressed all notice elements and predated the initial adjudication by the RO in October 2007. Next, VA has a duty to assist the Veteran in the development of the claim. This duty 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 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). In this case, all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. 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's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claim. VA provided the Veteran with examinations in August 2007, July 2010, and June 2012 to determine the nature and severity of his disability. 38 C.F.R. § 3.159(c)(4) (2012). When VA provides an examination or obtains an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the VA examination reports to be thorough and adequate upon which to base a decision on the claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information needed to evaluate the disability under the applicable rating criteria. Given the above, no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). But see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). 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 v. Derwinski, 1 Vet. App. 589 (1991). When the veteran is requesting an increased rating for an established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. See Powell v. West, 13 Vet. App. 31 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis below is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods. When evaluating joint disabilities rated on the basis of limitation of motion, VA may 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 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's lumbar spine disability has been evaluated under Diagnostic Code 5237, 38 C.F.R. § 4.71a (2012). Under the General Rating Formula for Diseases and Injuries of the Spine, the following evaluations are assignable 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: 10 percent - forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; the combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; 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; 20 percent - 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; 40 percent - forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; 50 percent - unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent - unfavorable ankylosis of the entire spine. Forward flexion to 90 degrees, extension to 30 degrees, left and right lateral flexion to 30 degrees, and left and right lateral rotation to 30 degrees are considered normal ranges of motion of the thoracolumbar spine. Plate V, 38 C.F.R. § 4.71 (2012). Prior to November 8, 2010 Historically, the RO granted service connection for status post injury to the second lumbar vertebra with anterior wedging deformity and lipping with degenerative changes in an October 1991 rating decision. In a February 2007 rating decision, the RO granted a temporary total evaluation effective October 16, 2006, for surgical treatment necessitating convalescence and continued the prior 20 percent rating from December 1, 2006. The Veteran filed a claim for increase in March 2007. During an August 2007 VA examination, the Veteran complained of low back pain and weakness and reported one flare-up of back pain in the past year that lasted less than five days. The examiner speculated that range of motion would be decreased by 50 percent in all directions during a flare-up. The Veteran denied having any incapacitating episodes in the last 12 months. He walked with a walker and noted being able to walk 50 yards. The examiner noted that the Veteran was retired due to age but would have some difficulty working now due to his back. Examination showed forward flexion to 70 degrees, extension to 20 degrees, left and right lateral flexion to 30 degrees, and left and right lateral rotation to 10 degrees. There was no change in range of motion after repetitive testing but there was pain beginning at 60 degrees of forward flexion, at the end of extension, and at the ends of left and right lateral rotation. There was no pain with left and right lateral flexion. The examiner indicated that there was no ankylosis. During a July 2010 VA examination, the Veteran complained of low back pain and stiffness and reported having flare-ups of back pain every two to three weeks lasting one to two days. The examiner appeared to indicate that range of motion would be decreased by 40 percent in all directions during a flare-up. The Veteran denied having any incapacitating episodes. He walked with a walker and noted being able to walk more than one quarter mile but less than one mile. The examiner indicated that the Veteran retired due to his back. Examination showed forward flexion to 50 degrees, extension to 30 degrees, left and right lateral flexion to 30 degrees, and left and right lateral rotation to 30 degrees, all with pain at the ends of motion. The examiner noted that repetitive testing produced pain but no additional limitations. The examiner indicated that there was no ankylosis. VA treatment records from March 2007 to November 2010 essentially mirror the above examination findings. Of note, the Veteran's range of motion of the lumbar spine was noted as being full in June 2007, full in October 2008, within normal limits in May and October 2009, and good in January 2010. June and July 2010 treatment notes show that he had 100 percent of flexion, 50 percent of extension, 50 percent of right lateral flexion, 10 percent of left lateral flexion, 50 percent of right lateral rotation, and 10 percent of left lateral rotation. Private treatment records do not contain specific range of motion findings but the Veteran was able to forward flex to halfway between the ankles and knees in June 2010. Given the above, even considering the Veteran's complaints of pain and functional loss per DeLuca, his limitation of range of motion did not approximate forward flexion of the thoracolumbar spine to 30 degrees or less. Although the August 2007 and July 2010 VA examiners indicated that range of motion would be decreased by 50 percent and 40 percent, respectively, during a flare-up, there was no change in range of motion after repetitive testing on examination. Moreover, a 50 percent reduction in forward flexion would only equate to 45 degrees, above the requisite 30 degrees. Further, in light of the fact that the Veteran clearly retains some range of motion of the lumbar spine, the assignment of a higher rating based on ankylosis is unfounded. Accordingly, a rating in excess of 20 percent is not warranted. To the extent applicable, Diagnostic Code 5243 for intervertebral disc syndrome cannot afford a higher evaluation in this case. To warrant the next-higher 40 percent rating under that code section, the evidence must demonstrate incapacitating episodes having a total duration of at least 4 weeks during the past 12 months. In this case, the Veteran denied experiencing any incapacitating episodes during the VA examinations. Although he reported flare-ups, there is no indication that he has required bed rest and treatment by a physician. Thus, the requirements of a 40 percent evaluation have not been approximated. Finally, per Note (1) to the General Rating Formula for Diseases and Injuries of the Spine, the Board has considered whether assignment of a separate evaluation for neurologic manifestations of a back disability is appropriate for this time period. Other than sciatica of the right lower extremity, for which service connection has already been established, no other neurologic manifestations were noted during the VA examinations. Since July 1, 2011 During a June 2012 VA examination, the Veteran complained of constant low back pain and denied flare-ups. He denied having any incapacitating episodes in the last 12 months. Examination showed forward flexion to 30 degrees with pain beginning at 5 degrees, extension to 10 degrees with pain beginning at 5 degrees, left and right lateral flexion to 10 degrees with pain beginning at 5 degrees, and left and right lateral rotation to 10 degrees with pain beginning at 5 degrees. The examiner noted that the Veteran was unable to perform repetitive testing due to severe pain and he has functional loss due to less movement than normal, incoordination, and pain on movement. The examiner stated that the Veteran would not be able to perform sedentary work or manual labor secondary to his degenerative disc disease and nerve related changes from his lumbar spine condition. As for VA and private treatment records since July 2011, although they indicate that the Veteran had limited range of motion of the thoracolumbar spine, they do not contain any specific range of motion findings. Given the above, although the Veteran's lumbar spine disability has been manifested by severe limitation of range of motion, it has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine. He was able to move his back throughout all ranges of motion during the VA examination and the record does not otherwise show that he has ankylosis. Although VA and private treatment records do not contain specific range of motion findings, they also do not show that he had ankylosis of the entire thoracolumbar spine, a finding the Board observes would be important enough to be recorded. Although he was unable to perform repetitive testing during the VA examination due to pain, his statement that he has constant low back pain without flare-ups or incapacitating episodes indicates that his condition at the time of the examination was reflective of his everyday disability picture. As such, even considering the DeLuca principles, a higher rating is not warranted in this case. Thus, despite the Veteran's complaints of constant low back pain, because he retains some range of motion, his disability does not more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine. Accordingly, a rating in excess of 40 percent is not warranted. To the extent applicable, Diagnostic Code 5243 for intervertebral disc syndrome cannot afford a higher evaluation in this case. To warrant the next-higher 60 percent rating under that code section, the evidence must demonstrate incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. In this case, the Veteran denied experiencing any incapacitating episodes during the VA examination, and there is otherwise no indication that he has required bed rest and treatment by a physician. Thus, the requirements of a 60 percent evaluation have not been approximated. Finally, the Board has considered whether assignment of a separate evaluation for neurologic manifestations is appropriate for this time period. However, other than radiculopathy of the lower extremities, for which service connection has already been established, the VA examiner indicated that the Veteran did not have any other neurologic abnormalities or findings related to his thoracolumbar spine condition. Aside from the also already service-connected neurogenic bladder, the record does not otherwise show any other neurologic manifestations associated with the Veteran's lumbar spine disability. In conclusion, an increased rating for the Veteran's lumbar spine disability is not warranted at any time during the rating period on appeal. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extra-Schedular The Board must also determine whether the schedular evaluation is evaluations are inadequate, thus requiring a referral of the claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability disabilities. 38 C.F.R. § 3.321(b)(1) (2012). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111 (2008). When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2012); Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the schedular evaluations are adequate. Evaluations in excess of those assigned are provided for certain manifestations of the service-connected lumbar spine disability, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. Moreover, he has been granted a total disability rating based on individual unemployability due in part to his lumbar spine disability under 38 C.F.R. § 4.16(a), further indicating that he has been adequately rated under the regular schedular standards. As the rating schedule is adequate to evaluate his disability, referral for extra-schedular consideration is not in order. ORDER A rating in excess of 20 percent prior to November 8, 2010, and in excess of 40 percent since July 1, 2011, for L-2 injury residuals with wedging deformity and lipping and degenerative changes is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs