Citation Nr: 1333165 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-13 880A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased rating for postoperative herniated nucleus pulposus of the lumbosacral spine, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Marne Marotta, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1999 to January 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. FINDINGS OF FACT The Veteran's low back disability is manifested by painful motion, but he is not limited to 30 degrees of flexion (or less) and he is without evidence of ankylosis. He has not had incapacitating episodes. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for postoperative herniated nucleus pulposus of the lumbosacral spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). See also 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); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The duty to notify was satisfied via letters sent to the appellant in October 2007 and January 2011. The claim was subsequently readjudicated in a February 2012 supplemental statement of the case. Mayfield, 444 F.3d at 1333. The duty to assist has also been satisfied. VA has obtained the appellant's service treatment records and VA medical records identified by the appellant as relevant to the appeal. The Veteran was also afforded VA examinations in November 2007 and February 2011. The VA examinations are sufficient, as the examiners considered the Veteran's statements and provided explanations for their opinions stated as well as the medical information necessary to apply the appropriate rating criteria. The Veteran has not identified any other relevant evidence that has not been requested or obtained. The Board finds that VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. II. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. 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. While the regulations require a review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. III. Rating Criteria The Veteran's back disability is currently evaluated as 20 percent disabling under 38 C.F.R. § 4.71, Diagnostic Code 5243, for invertebral disc syndrome. Invertebral disc syndrome can be evaluated under the General Formula for Diseases and Injuries of the Spine or based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a. Under the General Formula for Diseases and Injuries of the Spine, 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: A 20 percent evaluation requires evidence of forward flexion of the thoracolumbar spine to greater than 30 degrees but not greater than 60 degrees; or, evidence of the combined range of motion of the thoracolumbar spine to not greater than 120 degrees; or, evidence 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. A 40 percent evaluation requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assignable for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent evaluation may be assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a . For VA compensation purposes, unfavorable ankylosis is "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis." General Rating Formula for Diseases and Injuries of the Spine, Note 5. Under the incapacitating episodes criteria for Diagnostic Code 5243, with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, a 20 percent evaluation may be assigned. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent evaluation may be assigned. With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, a 60 percent evaluation may be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5243. For purposes of totaling the cumulative time of incapacitating episodes, an "incapacitating episode" is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. The schedule provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 2. The rating criteria also indicate that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. General Rating Formula for Diseases and Injuries of the Spine, Note 1. In this case, in order to assign a higher rating, the record must establish that the Veteran has: incapacitating episodes totaling more than four weeks but less than six weeks in a year; forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. None of these requirements have been demonstrated by the evidence of record. IV. Analysis The Board has considered the full history of the disability. A service medical board report shows that the Veteran developed back pain after physical training and was noted to have a herniated disc at L4-5. He underwent micro-diskectomy surgery. He continued to experience pain on motion and was given a disability discharge. Upon separation from service, he applied to VA for disability compensation, and was granted service connection for a postoperative herniated nucleus pulposus of the lumbosacral spine, and given a 20 percent rating. He underwent another back surgery in January 2008, and was assigned a temporary total rating, with the rating reverting back to 20 percent thereafter. The report of a November 2007 VA examination shows that the Veteran reported having back pain and lack of control of his legs and feet. He reported stiffness in the back, and a limited range of motion. He said that he had pain constantly. He stated that his spine condition did not cause incapacitation. On examination, the flexion was to 50 degrees. That was also the point at which pain occurred. The examination revealed no evidence of radiating pain on movement. Muscle spasm was present. Tenderness was noted. Straight leg raising was negative. The examiner noted that function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. There were no signs of intervertebral disc syndrome. During a February 2011 VA-contracted examination, the Veteran said that after his January 2008 L4-S1 fusion, he has experienced residuals of pain, decreased range of motion, numbness and spasms. The Veteran reported experiencing severe pain in his lower back, buttocks and legs constantly. The Veteran indicated that his pain is exacerbated by physical activity and stress, that his pain comes spontaneously, and that it is relieved by rest. The Veteran stated that when he experiences pain, he can function without medication. The Veteran reported no instances of incapacitation in the past 12 months. The Veteran indicated that he did not have bowel problems, erectile dysfunction, or bladder problems related to his spine condition. Examination of the thoracolumbar spine revealed no evidence of radiating pain on movement. Tight paraspinal muscle spasm was present, but it did not produce an abnormal gait. Tenderness was noted. No guarding of movement, weakness, or ankylosis was noted. Range of motion testing showed forward flexion limited to 40 degrees, extension limited to 15 degrees, lateral flexion on both sides limited to 20 degrees, and rotation on both sides limited to 20 degrees. Repetitive range of motion testing showed no additional degree of limitation. The examiner indicated that the joint function of the spine is not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The examiner diagnosed the Veteran with post operative herniated nucleus pulposus of the lumbosacral spine with intervertebral disc syndrome involving the sciatic nerve, bilateral. The Board notes that the Veteran received a separate evaluation for intervertebral disc syndrome with bilateral sciatic nerve involvement in November 2011. He has not disagreed with the 10 percent ratings that were assigned for those disabilities. As the Veteran reported no instances of incapacitation in the past 12 months (or during any time during the appeal period), and the record does not reflect any instances of incapacitation, a rating based on incapacitating episodes is not warranted. A higher rating based on limitation of motion is not warranted because the Veteran's forward flexion of the thoracolumbar spine is limited to no less than 40 degrees and no ankylosis was noted. To qualify for a higher rating, the Veteran's forward flexion of the thoracolumbar spine must be limited to 30 degrees or less or he must have favorable ankylosis of the entire thoracolumbar spine. This level of limitation of motion was not shown even upon repetitive range of motion tests. As discussed, the examiners noted that there was no additional limitation due to pain, fatigue, weakness, lack of endurance or incoordination. As limitation of motion to 30 degrees and/or ankylosis are not present, a higher rating is not warranted. V. Other Considerations Finally, the Board has considered whether extraschedular consideration is warranted. The discussion above reflects that the symptoms of the Veteran's low back disability (mainly pain and limitation of motion) are contemplated by the applicable rating criteria. The effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202 (1995). The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) has been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Here, the Veteran is currently employed and there is no evidence of unemployability due to the Veteran's service-connected low back disability. Further consideration of TDIU is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An increased rating for postoperative herniated nucleus pulposus of the lumbosacral spine is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs