Citation Nr: 1329242 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 13-03 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial rating in excess of 10 percent prior to April 11, 2013, and in excess of 20 percent thereafter, for degenerative disc disease (L4-L5). REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from September 2006 to October 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Louis, Missouri. In that decision, the RO granted service connection for degenerative disc disease of the spine at L4- 5, and assigned a 10 percent initial rating. Subsequently, in a decision of May 2013, the RO increased the rating for the Veteran's service-connected degenerative disc disease, which is currently staged as 10 percent from November 2006 to April 11, 2013, and 20 percent thereafter. The RO also granted service connection for left and right leg radiculopathy and assigned separate 10 percent ratings for each leg. The Board notes that the Veteran perfected his appeal in January 2013, prior to the April 2013 diagnosis of radiculopathy and the May 2013 rating decision. A Supplemental Statement of the Case was provided in May 2013 that indicated that the Veteran's appeal had been perfected in regards to his disagreement with the disability rating for his degenerative disc disease and that he did not have to respond in order for the appeal to proceed. The Veteran did not respond and the only issue properly before the Board is the rating of the Veteran's degenerative disc disease. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals they are either duplicative of the evidence in the paper claims file or irrelevant to the issues on appeal. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished. 2. Prior to April 11, 2013, the Veteran's degenerative disc disease of the thoracolumbar spine did not limit forward flexion to 60 degrees or less, did not result in a combined range of motion to 120 degrees or less, did not cause muscle spasms or guarding severe enough to result in abnormal gait or abnormal spinal contour, did not result in ankylosis, did not result in any incapacitating episodes, and did not result in objective neurological abnormalities for which separate ratings can be granted. 3. Since April 11, 2013, the Veteran's degenerative disc disease of the lumbar spine limits forward flexion to 40 degrees, but has not resulted in ankylosis, has not resulted in any incapacitating episodes, and does not result in any objective neurological abnormalities for which separate ratings can be granted (other than the separately rated radiculopathy of the right and left lower extremities). CONCLUSIONS OF LAW 1. Prior to April 11, 2013, the criteria for a rating in excess of 10 percent for degenerative disc disease of the thoracolumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a Diagnostic Code (DC) 5237 (2012). 2. Since April 11, 2013, the criteria for a rating of 20 percent, but no higher, for degenerative disc disease of the thoracolumbar spine have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a Diagnostic Code (DC) 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim, 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(b); 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). Notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In rating cases, a claimant must be provided with information pertaining to the assignment of disability ratings (to include the criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by a letter dated in March 2007. The content of the notice letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). With respect to the Dingess requirements, the letter included notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Accordingly, the duty to notify has been fulfilled. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this instance, the claims file contains the Veteran's service treatment records, private treatment records, and the Veteran's own assertions in support of his claim. The Board has reviewed the file 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 Veteran's claim for which VA has a duty to obtain; therefore appellate review may proceed without prejudicing him. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition, the RO arranged for VA examinations in May 2008 and in April 2013 to assess the severity of the Veteran's degenerative disc disease of the lumbar spine. The Board finds that the examinations obtained in this case were more than adequate, as they provide findings relevant to the criteria for rating the Veteran's degenerative disc disease and radiculopathy. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The claims file was reviewed at both examinations and the examiners considered the full history of the disability. The Board finds that the examinations were adequate to allow proper adjudication of the issue on appeal. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. II. Legal Criteria, Factual Background, and Analysis A. Criteria of Disability Evaluations Ratings for a service-connected disability are determined by comparing current symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based as far as practical on average impairment in earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155. Disabilities are viewed, and examinations are interpreted, historically, in order to accurately reflect the elements of the disability present. 38 C.F.R. §§ 4.1, 4.2. An increased rating is assigned if it more nearly approximates such rating. See 38 C.F.R. §§ 4.7, 4.21. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. The United States Court of Appeals for Veterans Claims (Court) has indicated that a distinction must be made between a veteran's dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings. The Veteran's claim for a higher rating for his low back disability is based on dissatisfaction with the original rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The pendency of this issue dates to the original rating decision granting service connection in July 2010. Consequently, the Board will evaluate the Veteran's low back disability as a claim for a higher evaluation of the original award. In regards to both the Veteran's disability, consideration must be given as to whether an increase or decrease is warranted at any time within the pendency of the appeal, a practice known as "staged" ratings. See Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of low back pain. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. B. Increased Rating of Degenerative Disc Disease In this case, the Veteran has been diagnosed with degenerative disc disease of the lumbar spine. This disability has been shown to cause limitation of motion of the lumbar spine. This service-connected disability is currently rated as 10 percent disabling prior to April 2013 and 20 percent disabling thereafter under 38 C.F.R. § 4.71a , DC 5237, which evaluates impairment from lumbosacral strain. DCs 5235-5243 are rated under the General Rating Formula for Diseases and Injuries of the Spine. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). 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. There are also alternative criteria for rating intervertebral disc syndrome based upon incapacitating episodes. Under the alternative criteria, a 10 percent rating is assigned when the Veteran has incapacitating episodes of intervertebral disc syndrome having a total duration of at least one, but less than two, weeks during the previous 12 month period. A 20 percent rating is assigned when the Veteran has incapacitating episodes of intervertebral disc syndrome having a total duration of at least two, but less than four, weeks during the previous 12 month period. A 40 percent rating is assigned when the Veteran has incapacitating episodes of intervertebral disc syndrome having a total duration of at least four, but less than six, weeks during the previous 12 month period. A 60 percent rating is assigned when the Veteran has incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks during the previous 12 month period. In evaluating musculoskeletal system disabilities based on limitation of motion, it is necessary to consider, along with the schedular criteria, functional loss due to flare- ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. Pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to a healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Additionally, the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare- ups. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran underwent a VA examination in May 2008. At that exam, the Veteran reported that he started having numbness in his right toes during basic training. He underwent physical therapy but the symptoms persisted. An MRI showed disc protrusion in the lumbar region. He did not undergo surgery. He reported his current symptoms as constant daily aching pain. He also reported a history of fatigue, decreased motion, stiffness, weakness, and spasms. He reported taking pain medication. He reported that if he decreases the medication, the pain increases from moderate to severe. Flare-ups were reported to occur weekly and last for 1-2 days. Zero incapacitating episodes were reported. The Veteran reported difficulty moving and bending. The only objective abnormality of thoracic sacrospinalis the examiner found was pain with motion. The examiner found no signs of spasm, atrophy, guarding, tenderness, or weakness. Posture, symmetry, gait, and head position were all found to be normal. The examiner conducted a motor examination. The sensory examination resulted in normal findings. The range of motion examination showed flexion from 0 to 90 degrees with pain beginning at 30 degrees. Extension was from 0 to 30 degrees with pain beginning at 10 degrees. Left lateral flexion was from 0 to 29 degrees with pain beginning at 24 degrees. Right lateral flexion was from 0 to 29 degrees with pain beginning at 25 degrees. Left lateral rotation was from 0 to 30 degrees with pain beginning at 25 degrees. Right lateral flexion was from 0 to 30 degrees with pain beginning at 24 degrees. There was no additional loss of motion on repetitive use for any of the rotations. Tests showed that the L4-L5 disc space has small central disc protrusion with a small annular tear without significant central canal or neural foraminal stenosis. At the L5-S1 disc space, tests showed broad based disc bulge compressing the lateral recesses and abutting the traversing nerve root on the right a mild neuroforaminal narrowing bilaterally greater on the left. A right paracentral disc protrusion was found at T12-11. The examiner found no other significant radiographic abnormalities of the lumbar or thoracic spine. The claims file also includes treatment records from St. John's Clinic dated from November 2006 to December 2009. There are reports of the Veteran suffering from back pain and having back spasms. There are also reports of decreased range of motion for flexion and side bending throughout 2008 and 2009. However, the reports do not offer results in terms of the limitation of motion in degrees the Veteran can move. The evaluations provided by St. John's Clinic do not allow for the RO to come to a different evaluation under 38 C.F.R. § 4.71a. Therefore, the Board gives greater probative weight to the VA examination. In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his low back disability. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). His statements have generally been consistent with the medical evidence of record. The level and type of pain he describes in his statements and to the VA examiner is consistent with the competent medical evidence. They do not offer any probative evidence beyond what has been described above. Based on the evidence, the RO granted a 10 percent disability rating for the Veteran's degenerative disc disease in July 2010. In his notice of disagreement, the Veteran's attorney argued that the 10 percent rating was too low. The attorney argued that the RO should not have used the General Rating Formula for Diseases and Injuries of the Spine. Instead, the attorney argued, the RO should have used DC 5243. The Board notes that DC 5243 either requires using the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. However, the objective medical evidence and the history provided by the Veteran clearly demonstrate no complaints of any incapacitating episodes. During the pendency of the appeal, the Veteran was afforded a second VA examination in April 2013 because he reported an increase in the level of pain. The Veteran noted radicular symptoms to both legs with forward and side to side bending. He also reported suffering from flare-ups. He reported that standing for more than 30 minutes causes pain to radiate through both legs to his feet. The Veteran was given a range of motion examination. Forward flexion ended at 40 degrees with pain starting at 10 degrees. Extension ended at 15 degrees with pain starting at 5 degrees. Right lateral flexion ended at 20 degrees with pain starting at 10 degrees. Left lateral flexion ended at 15 degrees with pain starting at 10 degrees. Right lateral rotation went to 30 degrees with pain starting at 20 degrees. Left lateral rotation went to 30 degrees with pain starting at 25 degrees. The Veteran demonstrated the same results after repetitive use testing. The examiner also noted that the Veteran has localized tenderness or pain to palpation in the thoracolumbar spine. The Veteran has guarding or muscle spasm of the thoracolumbar spine, but the Veteran does not suffer from abnormal gait or spinal contour. Muscle strength testing all indicated normal results. The Veteran does not suffer from muscle atrophy. The results of the reflex and sensory examinations were all normal. The examiner reported that the Veteran does not have intervertebral disc syndrome or incapacitating episodes. In summary, prior to April 11, 2013, the Veteran's degenerative disc disease of the thoracolumbar spine did not limit forward flexion to 60 degrees or less, did not result in a combined range of motion to 120 degrees or less, did not cause muscle spasms or guarding severe enough to result in abnormal gait or abnormal spinal contour, did not result in ankylosis, did not result in any incapacitating episodes, and did not result in objective neurological abnormalities for which separate ratings can be granted. Since April 11, 2013, the Veteran's degenerative disc disease of the lumbar spine limits forward flexion to 40 degrees, but has not resulted in ankylosis, has not resulted in any incapacitating episodes, and does not result in any objective neurological abnormalities for which separate ratings can be granted (other than the separately rated radiculopathy of the right and left lower extremities). Based on the evidence of record, the Board concludes that a rating in excess of 10 percent prior to April 11, 2013, is not warranted. However, effective April 11, 2013, a rating of 20 percent, but no higher, is warranted. C. Extraschedular Consideration Finally, an extraschedular evaluation is for consideration where service-connected disabilities present an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). 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 disabilities. See Thun v. Peake, 22 Vet. App. 111, 115 (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 and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that the schedular evaluations assigned for the Veteran's service-connected low back disability and radiculopathy are adequate in this case. Specifically, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected disabilities. Further, the clinical evidence demonstrates that the Veteran has not been hospitalized for either of his service-connected disabilities. Therefore, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board also notes that as the Veteran has not contended, nor does the evidence show that his disability renders him unemployable. The VA examiner noted at the VA examination in April 2013, that the Veteran's low back disability does impact his ability to work. Specifically, the examiner noted that the pain and decreased mobility experienced with twisting and bending causes the Veteran to work from a seated position for half of the day. However, this finding does not rise to the level of a claim for total disability rating based on individual unemployability. The issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER Entitlement to an initial rating in excess of 10 percent prior to April 2013, and in excess of 20 percent thereafter, for degenerative disc disease (L4-L5) is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs