Citation Nr: 1334173 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 07-37 920A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for degenerative disc disease of the lumbosacral spine, evaluated as 20 percent disabling prior to June 14, 2013, and as 40 percent disabling thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from September 1974 to May 1995. This case originally came before the Board of Veterans' Appeals (Board) on appeal of October 2007 and August 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In a decision of November 2010, the Board dismissed the Veteran's appeal regarding the issue of entitlement to service connection for a right shoulder disability. At that same time, the Board remanded for additional development the issue of entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the lumbosacral spine. In a decision of June 2012, the Board denied entitlement to an evaluation in excess of 20 percent for service-connected degenerative disc disease of the lumbosacral spine. The Veteran appealed that determination to the United States Court of Appeals for Veterans Claims (Court) which, in a December 2012 Order, vacated the Board's June 2012 decision, and, in so doing, remanded the Veteran's case to the Board for action consistent with a December 2012 Joint Motion for Remand. In May 2013, the Veteran's appeal was once again remanded to the RO for additional development. Subsequent to that action, the RO, in a rating decision of July 2013, awarded a 40 percent evaluation for the Veteran's service-connected degenerative disc disease of the lumbosacral spine, effective from June 14, 2013, the date of a VA examination. The case is now, once more, before the Board for appellate review. Review of Virtual VA reveals no evidence pertinent herein that is not already in the paper claims folder. He has separate ratings assigned for radiculopathy. Only the orthopedic manifestations of the back disorder are at issue herein. FINDINGS OF FACT 1. Prior to June 14, 2013, the Veteran's service-connected degenerative disc disease of the lumbosacral spine was productive of forward flexion of the thoracolumbar spine of no less than 40 degrees, and/or a combined range of motion of the thoracolumbar spine of no less than 105 degrees, with muscle spasm severe enough to result in lumbar straightening, but no evidence of incapacitating episodes. 2. The Veteran's service-connected degenerative disc disease of the lumbosacral spine is currently productive of forward flexion of the thoracolumbar spine of no less than 20 degrees, with no evidence of incapacitating episodes, or unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for service-connected degenerative disc disease of the lumbosacral spine prior to June 14, 2013 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. § 4.71a and Part 4, Diagnostic Code 5243 (2013). 2. The criteria for a current evaluation in excess of 40 percent for service-connected degenerative disc disease of the lumbosacral spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. § 4.71a and Part 4, Diagnostic Code 5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) In the case at hand, the requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Currently, there is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in August 2007, as well as in May 2008 and November 2010, of the information and evidence needed to substantiate and complete his claim, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Moreover, during the September 2010 Board hearing, the undersigned explained the issue on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claims. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2). Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, including those offered during the course of a videoconference hearing in September 2010, as well as both VA (including Virtual VA) and private treatment records and examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000), and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Increased Rating The Veteran in this case seeks an increased evaluation for service-connected degenerative disc disease of the lumbosacral spine. In pertinent part, it is contended that manifestations of that disability are more severe than currently evaluated, and productive of a greater degree of impairment than is reflected by the respective 20 and 40 percent schedular evaluations now assigned. In that regard, disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the Rating Schedule. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). In order to evaluate the level of disability and any changes in the Veteran's condition, it is necessary to consider the Veteran's complete medical history. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, where an increase in the level of the service-connected disability is at issue, the primary concern is the present level of that disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nonetheless, the Board acknowledges that a Veteran may experience multiple distinct degrees of disability which might result in different levels of compensation from the time an increased rating claim is filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In that regard, disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. The functional loss may be due to loss 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 visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45 (2013). Ratings shall be based as far as practicable upon the average impairment of earning capacity, with the additional proviso that the Secretary shall, from time to time, adjust the schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluation in found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve, on the basis of the criteria set forth in 38 C.F.R. § 3.321, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as a marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2013). At the time of a VA examination in August 2007, the Veteran complained of low back pain which was present all day, every day, and which was usually 9 out of 10 in severity. Additionally noted was the occasional radiation of pain to the bilateral lower extremities. When questioned, the Veteran denied any incapacitating episodes requiring physician-prescribed bed rest in the past 12 months. The Veteran additionally reported that his back pain was aggravated by certain sudden movements, as well as prolonged sitting, prolonged standing, weather changes, lifting, and bending. However, he denied experiencing any flare-ups of his low back disorder. According to the Veteran, he treated his back pain with over-the-counter medication. When further questioned, the Veteran indicated that he was employed by the United States Postal Service. Additionally noted were complaints of significant pain at work, though the Veteran could still reportedly perform his job. According to the Veteran, his activities of daily living were not affected. While he wore a back brace at work, he did not use any other assistive devices. Range of motion measurements of the Veteran's lumbar spine showed flexion to 70 degrees, with 15 degrees of extension, lateroflexion to 25 degrees, and rotation to 40 degrees. Reportedly, the Veteran experienced pain throughout all ranges of motion, with that pain being worse on forward flexion. Repetitive motion did not decrease the Veteran's range of motion or increase his pain. Nor was there any evidence of spasm on examination, though there was some tenderness in the area from the 3rd through the 5th lumbar vertebrae. Noted at the time of examination was that tests of straight leg raising were negative, and that the Veteran had 5/5 strength in all extremities, with 1+ deep tendon reflexes which were symmetrical. There was a decrease in sensation over the medial aspect of the Veteran's thighs, though his gait was within normal limits, and there was no evidence of any kyphosis, scoliosis, or lordosis. Radiographic studies of the Veteran's spine showed diffuse degenerative disc disease which was greatest in the area from the 4th lumbar vertebra through the 1st sacral segment. Additionally noted was evidence of significant osteophytosis. The pertinent diagnosis noted was degenerative disc disease of the lumbar spine. VA treatment records showed various complaints of back pain. The Veteran underwent physical therapy, and received injections for his spine. Further noted was that the Veteran had been prescribed pain medications at a military medical facility, where he was diagnosed with lumbago. On other occasions, the Veteran received steroid injections for his back at a VA medical facility. Moreover, on occasion, he requested a sick slip for 2 to 3 days off from work so that he could rest. On the Veteran's Substantive Appeal dated in September 2008, he indicated that he had times when his back flared up with chronic pain and muscle spasm. Reportedly, the Veteran did not visit a physician when his back pain flared because he was able to take approved leave from his job without providing documentation. Significantly, records in the claims folder show that the Veteran had been approved for leave under the Family Leave Act (FMLA) in part for his back. In a written statement dated in April 2009, the Veteran contended that he experienced extreme chronic pain. Reportedly, the Veteran took daily medications and received injections for his back pain. This had a great impact on the Veteran's daily life. According to the Veteran, he was depressed due to his back pain. At a September 2010 hearing before the undersigned Veterans Law Judge, the Veteran testified that he had taken 30 to 35 days of FMLA leave where his doctors had instructed him to go home due to back pain. Reportedly, this was typical for the Veteran over the course of a year. According to the Veteran, his pain and range of motion were worse than they had been in 2008. Reportedly, he still received injections to treat his back pain, and wore a back brace. When questioned, the Veteran indicated that he did not think that he could work without his back brace. Moreover, at home, when his back felt stiff, he took medication, and used a heating pad. Reportedly, the Veteran experienced muscle spasms mostly on exertion or standing, or when sitting for a long period of time. In January 2011, the Veteran was afforded an additional VA back examination based on the fact that, during the course of his hearing, he had indicated that his symptoms had become worse since his previous examination. At the time of that examination, the Veteran complained of constant low back pain which had become progressively worse, as well as muscle spasms after work which were alleviated partially by muscle relaxants. The Veteran complained of a burning sensation in his lower back which radiated to his legs. Further examination showed 4 or 5 out of 5 strength in the lower extremities. When questioned, the Veteran reported treatment with prescribed and over-the-counter medications. However, he denied any history of hospitalization, surgery, or a spinal neoplasm. The Veteran reported severe flare-ups of low back pain which were precipitated by cold weather, and which typically lasted from 3 to 7 days. When further questioned, the Veteran denied any bowel or bladder problems as a result of his spinal disability. While the Veteran complained of decreased motion, stiffness, weakness, spasm, and pain, he denied any problems with fatigue. Pain was present in the central thoracolumbar region, and was reportedly constant. The Veteran's posture, head position, symmetry, and gait were all within normal limits. While there was some evidence of lumbar flattening, otherwise, the curvature of the Veteran's spine was within normal limits. At the time of examination, there was evidence of muscle spasm which was severe enough to be responsible for an abnormal gait or abnormal spinal contour. While there was pain with motion and tenderness, there was no evidence of any atrophy, guarding, or weakness. Range of motion of the Veteran's thoracolumbar spine showed flexion to 40 degrees, with extension to 15 degrees, 15 degrees of right and left lateroflexion, and 10 degrees of right and left lateral rotation. At the time of examination, there was objective evidence of pain on motion, as well as pain following repetitive motion. However, there were no additional limitations following three repetitions of range of motion. Reportedly, magnetic resonance imaging of the lumbar spine conducted in December 2007 showed evidence of degenerative stenosis of the lumbar spine. Significantly, the Veteran reported that he was employed full time with the United States Postal Service, though he had missed approximately five weeks of work mostly due to back pain, but also due to neck pain. According to the Veteran, his back caused him problems with lifting, as well as carrying items at work. The pertinent diagnosis noted was degenerative disc disease of the thoracolumbar spine and intervertebral disc syndrome of the lumbar spine, with accompanying bilateral lower extremity radiculopathy. In an addendum to the aforementioned examination dated in April 2011, it was noted that, while the Veteran had intervertebral disc syndrome, he did not have incapacitating episodes meeting the criteria for having been prescribed bed rest. Such criteria were reportedly outdated, inasmuch as bed rest was no longer an accepted form of treatment for acute exacerbations of low back pain. Noted at the time was that the Veteran's flare-ups occurred primarily in cold weather, and were not incapacitating, though they did result in severe pain and limit the Veteran's ability to perform strenuous tasks, such as yard work. VA outpatient treatment records dated subsequent to April 2011 show continued treatment for the Veteran's low back pathology. At the time of a subsequent VA orthopedic examination on June 14, 2013, which examination involved a full review of the Veteran's claims folder, the Veteran received a diagnosis of degenerative disc disease. When questioned, the Veteran complained of daily pain for which he took medication, and utilized a TENS unit, which reportedly "helped a lot." Range of motion measurements showed forward flexion to 20 degrees, with extension to 10 degrees, right and left lateroflexion to 10 degrees, and right and left lateral rotation to 10 degrees. Noted at the time of examination was that the Veteran was able to perform repetitive use testing with three repetitions, following which forward flexion was to 20 degrees, with extension, right and left lateroflexion, and right and left lateral rotation to 10 degrees. Noted at the time of examination was that the Veteran had no additional limitation in range of motion of the thoracolumbar spine following repetitive use testing. However, there was evidence of less movement than normal, as well as weakened movement, and some pain on movement. Deep tendon reflexes at the knee were 2+ on both the right and left, while deep tendon reflexes at the ankle were 1+ on both the right and left. Tests of straight leg raising were reported as negative on both the right and left, and there was no evidence of any bowel or bladder problems. While at the time of examination, there was evidence of intervertebral disc syndrome of the thoracolumbar spine, the Veteran had experienced no incapacitating episodes over the course of the past 12 months due to that pathology. Noted at the time of examination was that, while the Veteran would not demonstrate flexion because he was not wearing his back brace and was worried about "support," when seated in the waiting room and in the examination room, his thighs were at nearly an 80-degree angle from his back. Nonetheless, he was only able to flex 20 degrees when standing upright. Significantly, at the time of examination, the Veteran demonstrated several Waddell signs, such as numbness in a nonanatomic distribution (stocking distribution), as well as pain in his back with axial loading of his feet. Pursuant to the general rating formula for diseases and injuries of the spine, a rating of 20 percent is assigned for forward flexion of the thoracolumbar spine which is greater than 30 degrees but not greater than 60 degrees, or a combined range of motion of the thoracolumbar spine that is 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, reverse lordosis, or abnormal kyphosis. An evaluation of 40 percent is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or where there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned where there is unfavorable ankylosis of the entire thoracolumbar spine, while a 100 percent rating is assigned where there is unfavorable ankylosis of the entire spine. These rating criteria apply with or without symptoms, such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of injury or disease. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2013). There are also alternative criteria for rating intervertebral disc syndrome based on incapacitating episodes. Under the alternative criteria, a 20 percent rating is assigned where 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 where 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 where the Veteran has incapacitating episodes of intervertebral disc syndrome having a total duration of at least six weeks during the previous 12-month period. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome which requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, "Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes." (2013). Based on the aforementioned, it is clear that, prior to June 14, 2013, the date of the aforementioned VA orthopedic examination, no more than a 20 percent evaluation was warranted for the Veteran's service-connected degenerative disc disease of the lumbosacral spine. Significantly, at no time during that period did the Veteran exhibit a limitation of forward flexion of the thoracolumbar spine to less than 40 degrees, or a combined range of motion of the thoracolumbar spine to less than 105 degrees. While it is true that, during the period in question, the Veteran may have missed work due in whole or in part to back pain, those episodes fail to meet the definition of "incapacitating episodes" as that term is used in the rating criteria. Significantly, at the time of the aforementioned VA examination in August 2007, the Veteran denied incapacitating episodes over the course of the past 12 months. Moreover, in an addendum to the January 2011 VA examination dated in April 2011, the examiner specifically indicated that the Veteran did not suffer from incapacitating episodes which met the criteria for prescribed bed rest. Not until the time of the most recent VA orthopedic examination on June 14, 2013 was there evidence of a limitation of motion of the thoracolumbar spine sufficient to warrant the assignment of a 40 percent evaluation. Significantly, at the time of that examination, forward flexion of the thoracolumbar spine was to only 20 degrees. However, there was no additional limitation in range of motion following repetitive use. While it is true that, at the time of that examination, the Veteran exhibited less movement than normal, as well as weakened movement accompanied by pain, there was no evidence of any bowel or bladder problems attributable to the Veteran's lumbosacral spine disability. Nor was there evidence of incapacitating episodes attributable to such pathology over the course of the past 12 months. Significantly, while at the time of that examination, the Veteran refused to demonstrate flexion due to the fact that he was not wearing his back brace, when seated in the waiting room and in the examination room on a chair, his thighs were at nearly an 80-degree angle from his back, though he was only able to flex 20 degrees when standing upright. Moreover, according to the examiner, during the course of the examination, the Veteran exhibited several Waddell signs, specifically, numbness in a nonanatomic distribution (i.e., stocking distribution) and pain in his back with axial loading of the feet. As regards the Veteran's entitlement to a greater than 40 percent evaluation for his service-connected degenerative disc disease of the lumbosacral spine, the Board notes that, at no time during the course of the current appeal has the Veteran exhibited unfavorable ankylosis of the entire thoracolumbar spine. Nor has it been shown that, at any time during the current appeal, the Veteran has suffered from incapacitating episodes having a total duration of at least six weeks during the past 12-month period. Under the circumstances, the 20 percent evaluation in effect for the Veteran's degenerative disc disease of the lumbosacral spine prior to June 14, 2013 was appropriate, and an increased rating is not warranted. Similarly appropriate is the current 40 percent evaluation in effect for that same disability. Accordingly, the Veteran's claim for an increased evaluation must be denied. Moreover, based on a review of the entire evidence of record, the Board is of the opinion that the disability picture presented by the Veteran's service-connected degenerative disc disease of the lumbosacral spine is appropriately contemplated by the Rating Schedule, and that referral for consideration of an extraschedular evaluation is, therefore, not warranted. See Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). ORDER Entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the lumbosacral spine prior to June 14, 2013 is denied. Entitlement to a current evaluation in excess of 40 percent for degenerative disc disease of the lumbosacral spine is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs