Citation Nr: 1333843 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 06-35 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 20 percent for lumbosacral strain prior to February 27, 2009. 2. Entitlement to a rating in excess of 40 percent for lumbosacral strain from February 27, 2009. 3. Entitlement to total disability based upon individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from March 1965 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by the RO in Philadelphia, Pennsylvania. The case was subsequently transferred to the RO in Winston-Salem, North Carolina. In July 2010, the RO notified the Veteran that a travel board hearing was scheduled for August 2010. The Veteran subsequently indicated that he did not want a hearing. As such, his hearing request is considered withdrawn. See 38 C.F.R. § 20.702(e) (2012). In November 2010, August 2012 and April 2013, the Board remanded the Veteran's claim for additional development. The appeal has been returned to the Board for further consideration. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing program. Accordingly, any future consideration of this appellant's case must take into consideration the existence of this electronic record. The issues of entitlement to a rating in excess of 20 percent for lumbosacral strain prior to February 27, 2009; and entitlement to a total disability evaluation based on individual unemployability due to service connected disorders, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Since February 27, 2009, lumbosacral strain has not been productive of ankylosis of the thoracolumbar spine. CONCLUSION OF LAW Since February 27, 2009, the criteria for a rating higher than 40 percent for lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp.2013); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.71a, Diagnostic Codes 5295, 5237 (2002 and 2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in March 2006 and in a November 2011 supplemental statement of the case, VA advised the Veteran of the information and evidence needed to substantiate the claim. These documents provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. The case was readjudicated in May 2013. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, VA examinations and available private treatment records. Virtual VA and VBMS documents have also been reviewed. No additional pertinent records are shown to be available, and the appellant does not argue otherwise. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Analysis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.) A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. 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 (2013). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 (2013) are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. The Veteran appeals the 40 percent rating assigned for his lumbosacral strain from February 27, 2009. This disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. The spine rating criteria were changed during the period of the Veteran's claim. Effective September 26, 2003, VA revised the criteria for evaluating general diseases and injuries of the spine. See 68 Fed. Reg. 51,454 (Aug. 27, 2003). Under former Diagnostic Code 5295, a maximum 40 percent evaluation was warranted for a severe lumbosacral strain when there was listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a , Diagnostic Code 5295 (2002). Diagnostic Code 5293, effective prior to September 23, 2002, provided a 40 percent rating was provided for severe symptomatology due to an intervertebral disc syndrome manifested by recurring attacks with little intermittent relief. A 60 percent rating was assigned for a pronounced intervertebral disc syndrome; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). Under the current general rating formula for diseases and injuries of the spine, a 40 percent rating is assigned for forward flexion of the thoracolumbar spine that is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a (2013) Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habits, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): 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. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The Veteran was seen for a VA compensation examination on February 27, 2009. He reported a history of constant back pain, with sharp pain that radiates to the hips and legs with numbness in the feet several times a week. Physical examination revealed that the appellant was stooped and that he used an antalgic gait. There was evidence of lumbar flattening, but no spasm or atrophy. There was evidence of guarding, pain on motion, and tenderness. Hip, knee and ankle flexion and extension was 4/5 in each extremity. There was no evidence of any abnormal sensation. Knee and ankle jerks were 2+ bilaterally. Active motion studies revealed flexion from 20 to 50 degrees, extension from 20 to 10 degrees, and 10 degrees of lateral flexion and rotation bilaterally. X-ray study revealed spinal canal narrowing, some spinal stenosis, and disc bulging. The appellant stated that he stopped working in March 2003 due to his back disorder. During a January 2013 VA examination, lumbar degenerative disc disease was diagnosed. The Veteran's lumbar spine clearly was not ankylosed given that he could forward flex to 50 degrees with painful motion at 45 degrees. After repetitive testing times three, forward flexion was to 40 degrees. There was functional loss, functional impairment and/or additional limitation of range of motion of the thoracolumbar spine after repetitive use to include less movement than normal, weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, instability of station, disturbance of locomotion and interference with sitting standing and/or weight-bearing. Abnormal spinal contour was shown on examination. Based on the evidence presented, the Board finds that entitlement to a rating higher than 40 percent disabling is not warranted for the period since February 27, 2009 under the old or new rating criteria. In this regard, given that there was motion in one plane of movement, there is no evidence of ankylosis of the spine. The Board points out that an increased evaluation is not available for the appellant's disability under Diagnostic Code 5295 or Diagnostic Code 5292 for limitation of motion. Those provisions provide a maximum schedular rating of 40 percent and the appellant is currently rated at this disability level for this period of time. A 60 percent rating is not in order under the old rating criteria because there is no evidence of symptoms compatible with sciatic neuropathy manifested by demonstrable muscle spasms and an absent ankle jerk. While the appellant did show evidence of a muscle spasm, the February 2009 and January 2013 VA examinations revealed either 1+ or 2+ deep tendon reflexes of the knees and ankles, and normal sensation throughout the lower extremities. There was no evidence of muscle atrophy. Therefore, a higher rating is not available under these provisions. The Board has considered other provisions under the old rating criteria for rating the spine but has found none that would permit a higher rating. The regulations provided a 60 percent evaluation under Diagnostic Code 5286 for favorable ankylosis which has never been shown since February 2009. The Veteran's lumbar spine disability is manifested by a limitation of motion but range of motion testing reveals, at worst, forward flexion to 40 degrees even when accounting for pain. The Veteran retains the ability to forward flex to 40 degrees with pain. Such movement demonstrates that his back is not functionally ankylosed. Consequently, a higher rating is not warranted when rating under the general rating formula for diseases and injuries of the spine. As there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine, a higher rating is not warranted under the new criteria. In sum, in the absence of a showing of ankylosis of the lumbar spine, a rating higher than 40 percent disabling is not warranted under old or new criteria. The Board acknowledges the Veteran's assertions that his disability is more severe than evaluated to include his reports of pain and functional limitations. The Veteran is competent to report his symptoms and has presented credible testimony. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also accepts that he has functional impairment. DeLuca. Neither the lay nor medical evidence, however, reflects the degree of functional limitation caused by lumbar ankylosis. Moreover, it is important to recall that under the regulation governing the evaluation of lumbar disorders, the general rating criteria are controlling regardless of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine in the absence of further, measurable functional limitations. 38 C.F.R. § 4.71a. At best, the lay and medical evidence of record demonstrates that a 40 percent rating is warranted, but not more. In short, the Board considered the appellant's lay opinion, but it finds that the most probative evidence consists of that prepared by a trained medical professional and such evidence demonstrates that the currently assigned rating is appropriate. The Board has considered whether the Veteran's lumbar spine disability would warrant a higher rating if rated on the basis of incapacitating episodes. Incapacitating episodes, however, are not shown by the record. That is, there is no evidence demonstrating any flare ups of back pain requiring physician prescribed bed rest. 38 C.F.R. § 4.71a. Without such evidence entitlement to a higher rating under the formula for rating an intervertebral disc syndrome based on incapacitating episodes is not warranted. With regard to neurologic abnormalities, the General Rating Formula under the new criteria directs that neurological manifestations of should be rated separately from orthopedic manifestations. The January 2013 examination revealed radicular pain due to radiculopathy involving the L4/L5/S1/S2/53 nerve roots (sciatic nerve). There was moderate right and left lower extremity constant pain, mild paresthesias and/or dysesthesias, and numbness of the right and left lower extremity. The radiculopathy was described as moderate in severity. In a February 2013 rating decision, service connection for right lower extremity sciatic radiculopathy was granted with an evaluation of 20 percent effective January 29, 2013. Service connection for left lower extremity sciatic radiculopathy was also granted with an evaluation of 10 percent effective January 29, 2013. As separate evaluations have been granted for radiculopathy of the left and right lower extremities (sciatic) and no other neurological problems have been identified and/or diagnosed as being associated with the lumber spine, no further discussion is needed on this matter. The Board considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). There are no exceptional or unusual factors with regard to the Veteran's disability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. To the extent that the Veteran has complained of symptoms such as pain, his symptoms are specifically contemplated by the general rating formula. Thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign a higher disability rating for his disability. As the preponderance of the evidence is against the claim for a higher rating, the "benefit-of-the-doubt" rule does not apply, and the claim must be denied. See 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102. ORDER Entitlement to a rating in excess of 40 percent for lumbosacral strain from February 27, 2009 is denied. REMAND The Board finds that further development is necessary regarding the issue of entitlement to a rating in excess of 20 percent for lumbosacral strain prior to February 27, 2009. In the prior remands, having determined that the Veteran's claim of entitlement to a higher rating for the lumbosacral strain had been pending since December 1984, the Board instructed the RO to also consider the former rating criteria in evaluating the lumbosacral strain. The Board noted that regulations pertaining to the evaluation of a lumbosacral strain and limitation of lumbosacral motion were amended effective September 26, 2003. In April 2013, the Board again instructed the RO to consider the former rating criteria in evaluating the lumbosacral strain and to consider evidence since December 1984. It appears that the RO has not complied with the Board's directives. While they considered the old and new regulations in the May 2013 Supplemental Statement of the Case, they did not consider the evidence dating back to December 1984. Rather, it appears that they only considered evidence since April 2006. The United States Court of Appeals for Veterans Claims has held that a remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, another remand is required. Furthermore, during his February 2009 and January 2013 VA examinations the Veteran expressed that he took early retirement because of his back pain. According to him, he used a lot of sick leave and decided to take early retirement. The law provides that a total disability evaluation based on individual unemployability due to service connected disorders may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a claim for individual unemployability is part of an increased rating claim when such claim is raised by the record. A claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is raised by the record. Accordingly, the Board has jurisdiction over this issue. In the present case, however, additional development is required before the claim can be adjudicated, including providing appropriate notice and assistance pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) and adjudicating the claim. Accordingly, the case is REMANDED for the following action: 1. After completion of any additional development deemed appropriate, the RO must re-adjudicate the issue of entitlement to an evaluation greater than 20 percent for a lumbosacral strain for the period prior to February 27, 2009. The RO/AMC must document their consideration of all evidence since the December 1984 claim, under the current AND former regulations pertaining to the evaluation of spine disabilities. The Veteran must be provided notice of all applicable regulations. If the benefit sought on appeal remains denied, the appellant and his representative must be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 2. Provide the Veteran VCAA notice which informs him of the evidence necessary to establish entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. The RO must then adjudicate the claim for a total disability evaluation based on individual unemployability due to service connected disorders. If the benefit is not granted to appellant's satisfaction, the claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders must be returned to the Board following appropriate action. No opinion as to the outcome is intimated by the action taken herein. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs