Citation Nr: 1329872 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 12-34 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for a lumbar spine strain, currently evaluated at 10 percent disabling. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service in the Army from June 2004 September 2008. The matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran filed a notice of disagreement in October 2010. The Veteran was provided with a Statement of the Case (SOC) in October 2012. The Veteran perfected his appeal in November 2012 with a VA Form 9. 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 VA treatment records dated October 2008 to August 2012. The other documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The Veteran's lumbar spine strain has been manifested by pain, stiffness, flare-ups, weakness, and spasms, with forward flexion of 65 degrees on repetitive motion; a combined range of motion of 200 degrees; and muscle spasms and localized tenderness not resulting in an abnormal gait or an abnormal spinal contour. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for lumbar spine strain are not met. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). For an increased disability rating claim, VA is required to provide the Veteran with generic notice - that is, the type of evidence needed to substantiate the claim. This includes 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 (Fed. Cir. 2009). Here the duty to notify was satisfied by way of a letter dated May 2010. The letter informed the Veteran of what evidence was required to substantiate the claim for an increased rating and of the Veteran's and VA's respective duties for obtaining evidence. The letters also provided notice regarding how disability ratings and effective dates are assigned. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran 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); 38 C.F.R. § 3.159 (2013). Here, the Veteran's statements and post-service VA and private treatment record have been associated with the claims folder. Additionally, the Veteran has not identified any outstanding records that have not been requested or obtained. The Veteran was provided with VA examinations in June 2010 and February 2012. The Board finds that the VA examination reports are adequate because the examiners conducted clinical evaluations, reviewed the Veteran's medical history and lay statements, and described the Veteran's lumbar strain disability in sufficient detail so that the Board's evaluation is an informed determination. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § Part 4 (2013). Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Here, the relevant evidentiary window begins one year before the Veteran filed his claim for an increased rating, and continues to the present time. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's lumbar strain is currently rated at 10 percent disabling under the diagnostic code for lumbosacral or cervical strain in accordance with the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. A 10 percent evaluation is warranted 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, vertebral body fracture with loss of 50 percent or more of the height. Id. A 20 percent evaluation is warranted for 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 warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. Id. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court also has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Background In a December 2008 rating decision, the Veteran was granted service connection for a lumbar spine strain. A 10 percent evaluation was assigned, effective September 19, 2008. The Veteran later filed a claim for an increased evaluation in May 2010. VA treatment records dated October 2008 to August 2012 show that the Veteran was treated for low back pain. A May 2010 VA treatment record shows that the Veteran denied any radiating pain and numbness and tingling in his legs. Objective findings revealed that the Veteran presented with increased lumbar lordosis in standing. A July 2010 VA treatment record shows that the Veteran had no radiation into the leg and did not describe weakness or numbness in the legs. A December 2010 VA treatment record shows that the Veteran reported constant pain, exacerbated by cold weather, lifting, and prolonged walking. There were no bowel or bladder complaints. The Veteran reported pain radiating down the left extremity associated with cramping. The Veteran denied numbness and tingling. The Veteran submitted private treatment records dated May 2010 that show that the Veteran was treated for back pain with sciatica. The Veteran was afforded a VA examination in June 2010. The Veteran provided subjective complaints of progressive pain, stiffness, and radicular symptoms. The Veteran reported weekly, severe flare-ups that lasted for hours. He stated that the flare-ups were caused by prolonged walking, standing, bending, twisting, lifting, and carrying. He reported partial relief with rest and activity medication. The examiner noted the extent of additional limitation or functional impairment during flare-ups was difficulty with the aforementioned activities. The Veteran reported a history of numbness and parethesias. He also reported a history of fatigue, decreased motion, stiffness, weakness, spasms, and spine pain. He also reported radiation of burning pain into the bilateral lower extremities. He denied incapacitating episodes and the use of assistive devices. He also reported that he was able to walk more than a quarter mile but less than a mile. On physical examination, the examiner noted that the Veteran's gait was normal and there were no abnormal curvatures of the spine or ankylosis of the thoracolumbar spine. The examiner noted that the Veteran was positive for spasms, pain with motion, and tenderness. The Veteran was negative for atrophy, guarding, and weakness. The examiner noted that the muscle spasms and localized tenderness were not enough to be responsible for an abnormal gait or abnormal spinal curvature. The Veteran's active range of motion was flexion 0 to 90 degrees, extension 0 to 20 degrees, right and left lateral flexion 0 to 30 degrees, and right and left lateral rotation 0 to 30 degrees. The examiner noted that there was objective evidence of pain on active range of motion and objective evidence of pain following repetitive motion. The examiner also noted that there was no additional limitation after three repetitions of range of motion. X-rays revealed the presence of transitional vertebra and L4-L5 spondylosis and shallow left paracentral disc herniation which impinges upon the traversing left L5 nerve root. The examiner noted the Veteran was unemployed but not retired and the reason given for unemployment was seeking work. The examiner noted the effects on occupational activity included decreased mobility, problems with lifting and carrying, and pain. The examiner also noted the effects on usual activity included limited ability to perform sports, exercise, chores, shopping, and travel. The Veteran was afforded another VA examination in February 2012. The Veteran complained of pain with temperature changes and difficulty sleeping. The Veteran denied that flare-ups impacted the function of the thoracolumbar spine. The Veteran's active range of motion was flexion 0 to 65 with pain, extension 0 to 20 with pain, right lateral flexion 0 to 25 with pain, left lateral flexion 0 to 30 with pain, and right and left lateral rotation 0 to 30. After repetitive testing the Veteran's forward flexion was 0 to 65, extension 0 to 20, right lateral flexion 0 to 25, left lateral flexion 0 to 30, and right and left lateral rotation 0 to 30. The examiner noted that the Veteran did not have additional limitation in range of motion of the thoracolumbar spine following repetitive motion. The examiner noted that the Veteran had functional loss and/or functional impairment of the thoracolumbar spine in the form of less movement than normal, pain on movement, and interference with sitting, standing, and/or weight-bearing. The Veteran was positive for localized tenderness and pain on palpation. The examiner noted that guarding and muscle spasms were present but did not result in abnormal gait or spinal contour. The examiner also noted that the Veteran had intervertebral disc syndrome (IVDS) but had no incapacitating episodes over the past 12 months due to IVDS. X-rays revealed the presence of transitional vertebra and L4-L5 spondylosis and shallow left paracentral disc herniation which impinges upon the traversing left L5 nerve root. The examiner also stated that the Veteran's back condition impacted his ability to work and noted that the Veteran last worked two years ago in security, the job ended, and he has difficulty walking. Analysis Based on the above, the Board finds that the Veteran's lumbar spine strain meets the criteria for a 10 percent evaluation throughout the entire appeal period. In order to warrant the next higher evaluation, the evidence must show a 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. Because the medical evidence of record has not at any time during the pertinent appeal period shown the presence of a limitation of motion that is contemplated by the Schedule, as the Veteran's flexion has decreased from 90 degrees to 65 degrees and his combined range of motion has decreased from 230 to 200 over a six year period, nor has there been any indication of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, the Board finds that the Veteran is not entitled to an evaluation in excess of 10 percent for a lumbar spine strain. When applying the DeLuca criteria to the Veteran's claim, the preponderance of the evidence of record still demonstrates that he is not entitled to a disability evaluation in excess of 10 percent. At the June 2010 examination the Veteran reported weekly, severe flare-ups that lasted for hours. During flare-ups the Veteran had some difficulty with the aforementioned activities. At the February 2012 examination the Veteran denied flare-ups that impact the function of the thoracolumbar spine. The June 2010 examiner noted that while there was objective evidence of pain following repetitive motion, there were no additional limitations of motion. The February 2012 examiner noted there was no additional limitation in range of motion following repetitive-use testing. The February 2012 examiner noted that the contributing functional impairment of the thoracolumbar spine included less movement than normal, pain on movement, and interference with sitting, standing and/or weight bearing. Therefore, even though the Veteran experienced pain upon movement, flare-ups, and a limited range of motion, this evidence alone does not demonstrate an overall functional impairment that is in excess of a 10 percent disability rating. Given the evidence of record, the Board finds that the Veteran's pain and any functional loss due to flare-ups are encompassed by the 10 percent disability rating. Therefore, an initial rating in excess of 10 percent is not warranted. The Board has also considered whether a higher disability rating would be warranted based on the Formula for Rating Intervertebral Disc Syndrome. Under this formula, a 20 percent rating is warranted when there is evidence of incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. 38 C.F.R. § 4.71a. For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). The February 2012 examiner noted that the Veteran had IVDS but had no incapacitating episodes over the past 12 months due to IVDS. As such, a higher disability evaluation based on IVDS is not warranted. In addition, the Board finds that a separate disability rating is not warranted for a neurological disability because the objective medical evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from his service-connected lumbar spine strain. In this regard, the Board acknowledges the Veteran's complaints of moderate intermittent radiating pain in his left lower extremity at the February 2012 examination. However, the preponderance of the evidence does not show that the Veteran has a separately diagnosed neurological deficiency. The February 2012 examiner noted that the Veteran did not have any other signs or symptoms of radiculopathy and noted the Veteran did not have any other neurologic abnormalities or findings related to a thoracolumbar spine condition. Therefore, the Board concludes that the Veteran does not suffer from additional neurological deficiency so as to warrant a separate disability rating under the diagnostic codes pertinent to rating neurological disorders. See Bierman v. Brown, 6 Vet. App. at 129-132 (1994). The Board has also considered rating the Veteran on an extraschedular basis. The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's service-connected lumbar strain disability include pain, flare-ups, and limitation of motion. However, these symptoms of the Veteran's lumbar spine disability are not shown to cause any impairment that is not already contemplated by the rating criteria, and the Board finds that the rating criteria reasonably describes his disability. See 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5256-63. For this reason, referral for consideration of an extraschedular rating is not warranted for this claim. Finally, the Court has held that entitlement to a TDIU is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. The Board notes that the Veteran is currently unemployed and that he has trouble walking. However, the Veteran has not asserted that his unemployment is due to his service-connected lumbar strain disability. At the June 2010 VA examination the Veteran reported that he was unemployed and the reason for his unemployment was seeking work. At the February 2012 VA examination the Veteran reported that he last worked two years ago because the job ended. As there is no evidence that the Veteran's service connected lumbar strain precludes employment the question of entitlement to a TDIU is not raised. ORDER Entitlement to a disability rating in excess of 10 percent for a lumbar spine strain is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs