Citation Nr: 1334549 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-14 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to an evaluation in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kalisse Anderson, Associate Counsel INTRODUCTION The Veteran had active military service from October 2003 to October 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. Degenerative disc disease of the lumbar spine is manifested by subjective complaints of pain, especially on physical activity, standing, sitting and walking long distances and decreased range of motion with objective evidence of limitation of motion of the lumbar spine. There is no evidence of moderate or severe limitation of motion or ankylosis, nor is there any evidence of incapacitating episodes or associated neurological disability. 2. There is no competent evidence of record providing an objective diagnosis of a neurological disability associated with service-connected degenerative disc disease of the lumbar spine. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5243, General Rating Formula for Diseases and Injuries of the Spine (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability evaluations are determined by comparing a Veteran's present symptomatology with the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of the two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement compensation has already been established and an increase in disability rating is at issue, the present level of the Veteran's current disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board has reviewed all evidence of record, as required; however, the more critical evidence consists of the evidence generated during the appeal period. The Board is required to not only to evaluate the medical evidence of record since the filing of the claim for an increased rating but also consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which the ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all the elements listed above. Functional loss may be due to an 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 evidence by the visible behavior of the claimant undertaking the motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include restricted or excess movement; weakness; fatigability; incoordination; or pain on movement. 38 C.F.R. § 4.45. The Veteran's DDD has been evaluated as 20 percent disabling under 38 C.F.R. § 4.71(a), Diagnostic Code 5243, pertaining to intervertebral disc syndrome. He asserts a higher evaluation is warranted. The Veteran's entire record will be reviewed under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) and special consideration is warranted for disabilities diagnosed under Diagnostic Code 5243 based on incapacitating episodes. Under the General Rating Formula, 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, unfavorable ankylosis of the entire spine warrants a 100 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Important for this case, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine, warrants a 40 percent rating. 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 abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent rating. Note (1): Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is 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 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 habitus, 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's thoracolumbar spine disability has been evaluated at 20 percent throughout the appeal period. The Veteran's DDD was manifested by subjective complaints of pain, especially following walking, sitting or standing for prolonged periods. Objective evidence of record during this period indicates decreased range of motion of lumbar spine without ankylosis of the thoracolumbar spine or the entire spine or evidence of incapacitating episodes or an associated neurological disability. In regards to the Veteran's range of motion test, an August 2009 VA contract examination noted the Veteran as having flexion of the lumbar spine limited by pain from zero to 60 degrees, full extension from zero to 20 degrees, full lateral flexion from zero to 30 degrees bilaterally, and full lateral rotation from zero to 25 degrees and a total range for motion of 135 degrees, providing evidence against this claim. Further, there are objective findings that the Veteran suffers from muscle spasms, guarding, fatigue, numbness and stiffness, all of which are symptoms that would warrant a 20 percent evaluation, but not more. Additionally, the examiner noted that the Veteran had a normal gait. No additional limitation of motion was found due to tenderness, incoordination, or lack of endurance. See March 2010 VA Contract Examination. Applying the range of motion measurements to the General Ratings Formula, the above evidence demonstrates that the Veteran is not entitled to an evaluation greater than 20 percent for his DDD. See 38 C.F.R. § 4.71(a). The Board observes that Veteran has not provided any evidence of forward flexion of the thoracolumbar spine limited to 30 degrees or favorable ankylosis of the entire thoracolumbar spine, which would warrant a 40 percent evaluation. Additionally, there is no evidence that the Veteran suffers from unfavorable ankylosis of the entire thoracolumbar spine, which would warrant a 50 percent evaluation or unfavorable ankylosis of the entire spine, which would warrant a 100 percent evaluation. Further, the Board considered whether the evidence of record demonstrated entitlement to a rating in excess of 20 percent under Diagnostic Code 5243 (pertaining to intervertebral disc syndrome). However, the Board finds that a higher rating is not warranted. There is nothing of record evidencing incapacitating episodes, at any point during the Veteran's appeal caused by the Veteran's DDD. Incapacitating episodes are defined as 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. See 38 C.F.R. § 4.71(a), Diagnostic Code 5243, Note (1). The Board acknowledges the Veteran's complaints of pain, numbness, stiffness and spasms, particularly on flexion and motion. See August 2009 VA contract examination report; see also June 2009 VA Form 21-4138. However, the Board notes that the objective evidence of record indicates such pain does not limit the Veteran's functional range of motion of the lumbar spine to less than those levels discussed above and, as such, does not serve as a basis for an evaluation in excess of 20 percent for manifestations of DDD. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) ("pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system"). In this regard, it is important for the Veteran to understand that if the Veteran were not having problems with his back, a compensable evaluation could not be justified, let alone a 20 percent evaluation. As a result, the Board finds that the Veteran is not entitled to an evaluation in excess of 20 percent for his service-connected DDD. The Board has considered whether the benefit of the doubt rule applies to this stage of the appeal. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet App 49, 55 (1990). However, the rule does not apply in this instance, a preponderance of the evidence is against an increased evaluation and the claim must be denied. The Board acknowledges the Veteran's assertions that his service-connected DDD warrants an evaluation greater than 20 percent. However, in determining the actual degree of disability, an objective examination is more probative of the degree of Veteran's impairment. Additionally, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71(a) in determining the overall severity of the disability. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). The Board has also considered whether a separate evaluation for a neurological disability is warranted. See 38 C.F.R. § 4.71(a), General Rating Formula Note (1). The Veteran's August 2009 VA examination shows negative findings for any bladder or bowel impairment that would warrant a separate evaluation under the General Rating Formula for neurologic abnormalities. The Veteran does have subjective complaints of shooting pain and numbness in his legs as a result of his disability. It is evident that the VA examiner took his complaints under consideration during the examination; however, the VA examiner reported no objective findings of radiculopathy that would warrant a separate evaluation, providing objective evidence against such a finding. The discussion above reflects the notion that the symptoms and effects of the Veteran's DDD, namely painful and reduced motion, are fully contemplated by the applicable rating criteria in the rating schedule. Therefore, 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. 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111 (2008). On a final note, entitlement to total disability rating based upon individual unemployability (TDIU) is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the record is negative for evidence that the Veteran is unemployable. He is not in receipt of Social Security disability benefits, and there is no medical evidence that the Veteran's disability has markedly interfered with employment. In the Veteran's October 2009 notice of disagreement, he states that his disability has caused him to loose hours at work and that he is sent home from work on certain occasions because of the pain in his back. See October 2009 Notice of Disagreement. In the Veteran's VA-Form 9 the Veteran states that he is often missing days from work and cannot get out of bed. See March 2010 VA-Form 9. At the Veteran's VA examination in August 2009, the examiner noted that the effects of the Veteran's disability on his occupational activities include "[d]ecreased mobility, [p]roblems with lifting and carrying, [w]eakness or fatigue, [d]ecreased strength: lower extremity, [p]ain." See August 2009 VA Examination. The Board has no reason to dispute the Veteran's statement and understands his concerns. As noted, the Veteran remains employed and while the Veteran has indicated has experienced increased absenteeism, he has not stated that he is unable to perform his duties due to his service-connected lumbar spine disability. See October 2009 Notice of Disagreement. Further, all of the complaints listed by the Veteran, e.g., weakness, pain and loss of mobility, are taken into consideration by the rating criteria, which, very generally, indicates a 20 percent reduction in the Veteran's industrial capacity, which, by definition, would cause the Veteran the problems he has cited (if there were no problems, there would be no basis for the current rating). Therefore, remand or referral of a claim for TDIU is not necessary, as there is no evidence of unemployability due to his service connected disability. Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). See Pelegrini v. Principi, 18 Vet. App. 112 (2004). For increased-rating claims, 38 U.S.C.A. § 5103(a) requires the Secretary "to notify the claimant that to substantiate such a claim the claimant should provide or ask the Secretary to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment." Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102-103 (2010) (Vazquez-Flores II) (citing Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1279-80 (Fed. Cir. 2009) and Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008)). The Veteran received notification prior to the initial unfavorable agency decision through a July 2009 letter. The Veteran's claim was subsequently readjudicated, most recently in a March 2010 statement of the case. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A (2002); 38 C.F.R. § 3.159 (2012). Service treatment records have been associated with the claims file. All post-service treatment records and reports identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to assist the Veteran in obtaining records has been satisfied. See 38 C.F.R. § 3.159(c)(4). The Veteran was afforded a VA examination in August 2009. See 38 U.S.C.A. § 5103A; see also 38 C.F.R. § 3.159(c)(4); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board finds the VA examination adequate for the purposes of the present claim, as it involved a review of the Veteran's pertinent medical history as well as a physical examination and provides a discussion of the relevant symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the fullest extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; see 38 C.F.R. § 3.159. ORDER An evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine is denied. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs