Citation Nr: 1333347 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-41 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an evaluation in excess of 10 percent for lumbosacral strain prior to April 22, 2013, and in excess of 20 percent thereafter. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1981 to January 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2013, the Board remanded this appeal for further evidentiary development. During the course of the appeal, the Veteran was granted service connection for radiculopathy of the left lower extremity, and assigned a 10 percent rating effective September 7, 2006, and a 30 percent rating effective, January 8, 2010, in a June 2013 rating decision. The RO also granted service connection for radiculopathy of the left upper extremity, and assigned a 10 percent rating effective September 7, 2009, and a 20 percent rating effective, April 22, 2013, in the June 2013 rating decision. The Veteran was informed that this was considered a full grant of all benefits sought on appeal. Neither the Veteran nor his representative has disputed this finding. Therefore, these issues are no longer before the Board. In the June 2013 rating decision, the Veteran was assigned a 20 percent rating for the service-connected lumbosacral strain effective April 22, 2013. As a higher rating is available, the Veteran is presumed to seek the maximum available benefit, the Board has characterized the appeal as set forth on the title page. See AB v. Brown, 6 Vet. App. 35, 38. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 April 22, 2013, the Veteran's lumbosacral strain was manifested by pain and limitation of motion, including forward flexion to 85 degrees and a combined range of motion of the thoracolumbar spine greater than 120 degrees. There was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 2. Beginning April 22, 2013, the Veteran's lumbosacral strain was manifested by pain and limitation of motion, with forward flexion limited to 40 degrees. There was no ankylosis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a lumbosacral strain were not met prior to April 22, 2013. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2013). 2. The criteria for a rating in excess of 20 percent for a lumbosacral strain from April 22, 2013, have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants 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) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1). A September 2007 VCAA letter explained what evidence was required to substantiate his claim for higher ratings for his service-connected disabilities. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). With regard to the duty to assist, the claims file contains service treatment records, reports of post-service treatment, and reports of VA examinations. See 38 U.S.C.A. § 5103A(a)-(d). In the January 2009 notice of disagreement, the Veteran identified VA treatment records dated before June 2006, which is more than one year prior to the date of the claim. Given that the relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim, the Board finds that the absence of these treatment records is not prejudicial to the Veteran. See 38 C.F.R. § 3.400. In compliance with the Board's March 2013 remand instructions, the RO/AMC requested that the Veteran be afforded a VA examination of his thoracolumbar spine. Subsequently, the Veteran was afforded a VA examination in April 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examination reports and medical opinions of record are adequate for rating of the Veteran's disorders under the applicable rating criteria. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the claims file that there are additional available relevant records that have not yet been obtained. II. Increased rating Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a particular disability it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In this case, staged ratings are applicable. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Analysis The Veteran's lumbosacral strain is rated as 10 percent prior to April 22, 2013, and as 20 percent thereafter, pursuant to Diagnostic Code 5237. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2013). The criteria for rating all spine disabilities is set forth in a General Rating Formula for Diseases and Injuries of the Spine, pursuant to which limitation of motion, primarily, is evaluated. Under the General Rating Formula, a 10 percent rating is assignable for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or a 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 nor resulting in abnormal gait or abnormal spinal contour or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assignable for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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. A 40 percent rating is assignable where forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assignable for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assignable for unfavorable ankylosis of the entire spine. These criteria are applied with and 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235-5243). Under the rating schedule, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula, Note 2, and Plate V. Also, Under Note (1) of the General Rating Formula, VA must consider whether combining ratings for orthopedic and neurological manifestations would result in a higher rating for service-connected spine disability. Under the current rating schedule, where a spine disability is manifested by intervertebral disc syndrome, the disc disease may be rated based on limitation of motion, as delineated above, or based on the cumulative amount of time in which the condition was incapacitating over the prior 12 months. 38 C.F.R. § 4.71a An "incapacitating episode" for purposes of totaling the cumulative time 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, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. Prior to April 22, 2013 The Veteran was afforded a VA examination in September 2007. He reported low back pain for which he took over the counter medicine. He reported stiffness, weakness, and spasm. The Veteran described the pain as moderate with weekly flare-ups lasting hours. The Veteran had IVDS but had no incapacitating episode for the thoracolumbar region during the past 12 months. He was able to walk one to three miles. Range of motion for the lumbar spine was 0 to 88 degrees flexion with pain at 88 degrees, 0 to 30 degrees of extension with pain with pain beginning at 30 degrees, 0 to 20 degrees of right lateral flexion with pain at 20 degrees, 0 to 25 degrees of left lateral flexion with pain beginning at 25 degrees, and bilateral rotation from 0 to 30 degrees with pain at 30 degrees. There was no spasm, atrophy, guarding, pain with motion, tenderness, or weakness objectively with the lumbar spine. The Veteran was employed full time and had not missed work due to his back problem. The lumbar spine disability did cause problems lifting and carrying items and had moderate effects on chores, exercise, sports, recreation, and mild effects on traveling. An October 2008 private treatment record from Dr. Brodrick revealed flexion to 85 degrees. The Veteran reversed the lumbar lordosis. There was a normal contour of the spine. His back was tender to a mild degree at the lumbar spine. Based on the record, the criteria for a rating in excess of 10 percent have not been met for the period prior to April 22, 2013. The Board finds the October 2008 private treatment record to be the most probative evidence of the actual range of motion of the Veteran's lumbosacral spine. That documented flexion to 85 degrees, is consistent with a 10 percent rating. Indeed, the October 2008 private examiner noted reversed lumbar lordosis. On VA examination in April 2013, there was no evidence of muscle spasm or guarding, including not resulting in reversed lordosis. There was no evidence in the record of more severely limiting range of motion warranting a rating higher than 10 percent. The Veteran's subjective complaints of limitation of function and weekly flare-ups due to painful motion are contemplated by the 10 percent evaluation prior to April 22, 2013. Indeed, the Veteran denied incapacitating episodes as contemplated by the regulation. Furthermore, in order to warrant a higher evaluation, there must be the functional equivalent of limitation of flexion of 60 degrees or less. On the September 2007 VA examination, the Veteran had forward flexion to 88 degrees, extension to 30 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, and right and left rotation to 30 degrees. Similarly, the October 2008 private examination disclosed flexion to 85 degrees with a normal contour of the back. We also know that the combined range of motion was greater than 120 degrees. Furthermore, the private medical doctor established that the Veteran had a normal gait. This tends to establish that the Veteran is not functionally limited more than is warranted by a higher rating. The Board acknowledges the Veteran's reported history of symptomatology regarding the lumbosacral strain, to include pain, stiffness, weakness, and spasms as discussed above during this appeal period, and that he is competent to report such symptoms because this requires only personal knowledge as it comes through ones senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Prior to April 22, 2013, the range of motion is not shown to be functionally limited to a degree sufficient to warrant a rating higher than 10 percent and his subjective complaints of limitation of function due to painful motion is contemplated in the 10 percent disability evaluation. The Board notes the pleading to the effect that the evidence from Dr. Brodrick supports a 20 percent evaluation. Although the Veteran complained of pain, the range of motion was to 85 percent. This evidence clearly established that his remaining functional use is better than 60 percent and such evidence does not support a higher evaluation. Since April 22, 2013 Effective April 22, 2013, the AOJ assigned a 20 percent evaluation. This evaluation contemplates flexion greater than 30 degrees. In order to warrant a higher evaluation, there must be the functional equivalent of limitation of flexion to 30 degrees or less due to painful motion, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See DeLuca v. Brown, 8 Vet. App. 202 (1995). On VA examination in April 2013, the Veteran had forward flexion from 0 to 40 degrees with pain at 40 degrees, extension was 0 to 20 degrees with pain at 10 degrees, right lateral flexion was 0 to 15 degrees with pain 10 degrees, left lateral flexion was 0 to 15 degrees with pain 10 degrees, right lateral rotation was 0 to 15 degrees with pain at 10 degrees, left lateral rotation was 0 to 15 degrees with pain at 10 degrees. There was no change with repetitive movement. The Veteran reported IVDS but no incapacitating episodes. There was no localized tenderness or pain to palpation for the joint, guarding, or muscle spasm. There was no abnormal spinal contour. The lumbar spine disability impacts the Veteran's ability to work but does not prevent it. The examiner noted that he would have difficulty with a physically demanding job, load carrying greater than 50 pounds repetitively, and repetitive bending, kneeling and squatting. Based on the record, the criteria for a rating in excess of 20 percent for the Veteran's lumbosacral strain were not met at any time. At no time was the Veteran shown to have the functional equivalent of limitation of forward flexion of 30 degrees or less, even after repetition. Nor was he shown to have any type of ankylosis. Either forward flexion of 30 degrees or less or favorable ankylosis of the thoracolumbar spine is required for the next higher rating, and neither of these factors were shown here. Also, there is no lay or medical evidence that established that he is functionally limited to 30 degrees or less of flexion. DeLuca v. Brown, 8 Vet. App. 202 (1995). Thus, the preponderance of the evidence is against an evaluation for the service-connected lumbosacral strain in excess of 10 percent prior to April 22, 2103, and in excess of 20 percent thereafter. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Considerations The Board finds that the Veteran's symptoms do not present such an exceptional disability picture as to render the schedular rating inadequate. 38 C.F.R. § 3.321(b). See also Thun v. Peake, 22 Vet. App. 111, 115 (2008) (the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the schedular evaluation is inadequate). Symptoms such as muscle spasm, pain, and limitation of motion are expressly contemplated in the rating schedule. Moreover, no unusual factors such as repeated hospitalizations or material interference with employment are present in this case. As a final matter, the Board notes that under Rice v. Shinseki, 22 Veteran. App. 447 (2009), the Board must remand an increased rating issue if the Veteran, or the evidence of record raised the matter of individual unemployability. However, in this case, the Veteran has not indicated that he is unable to maintain employment because of his service-connected disabilities during the pendency of this appeal; hence, any development or consideration under Rice is not indicated at this time. ORDER An evaluation in excess of 10 percent for lumbosacral strain for the period prior to April 22, 2013, is denied. An evaluation in excess of 20 percent for lumbosacral strain for the period beginning April 22, 2013, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs