Citation Nr: 1334637 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 07-29 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a rating in excess of 20 percent for the orthopedic manifestations of mechanical low back pain for the period from September 14, 2008, to November 1, 2011, and in excess of 40 percent from November 1, 2011. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from July 1971 to November 1993. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Regional Office in Philadelphia, Pennsylvania. This case comes to the Board from the RO in Pittsburgh, Pennsylvania. The case was previously before the Board in September 2011 at which time the Board denied a rating in excess of 20 percent for orthopedic manifestations of mechanical low back pain for the period prior to September 14, 2008, and remanded the issue as it pertains to the period beginning September 14, 2008. In addition, the Board remanded the issue of entitlement to a separate, compensable rating for L5 radiculopathy. By rating decision in May 2012, the RO granted service connection and a separate, compensable, rating for radiculopathy left lower extremity (characterized as L5 radiculopathy). There has been no disagreement with either the rating assigned or the effective date and that matter was not readjudicated in the supplemental statement of the case. Also in this decision the RO increased the rating for orthopedic manifestations of mechanical low back pain to 40 percent, effective November 1, 2011. FINDINGS OF FACT 1. For the period from September 14, 2008, to November 1, 2011, the Veteran's service-connected orthopedic manifestations of mechanical low back pain have been productive of forward flexion of the thoracolumbar spine more often than not less than 30 degrees. 2. From September 14, 2008, the Veteran's service-connected orthopedic manifestations of mechanical low back pain have not been productive of ankylosis of the thoracolumbar spine, incapacitating episodes of intervertebral disc syndrome (IVDS), or separately ratable neurological manifestations (other than his already service-connected neurological impairment of the left lower extremity). CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the appellant's favor, the criteria for a rating of 40 percent, but no more, for orthopedic manifestations of mechanical low back pain for the period from September 14, 2008 to November 1, 2011, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Codes 5237, 5243 (2013). 2. The criteria for a rating in excess of 40 percent for orthopedic manifestations of low back pain from September 14, 2008, have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Codes 5237, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in December 2006 of the information and evidence needed to substantiate and complete the claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently adjudicated in May 2012. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim, and as warranted by law, affording VA examinations. He was provided the opportunity to present pertinent evidence and testimony, although in terms of testimony, as noted, he withdrew his hearing request. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). II. Facts A private physical therapy record in September 2008 shows that the Veteran developed acute right lumbar pain approximately one week earlier. His present level of functioning included sub-acute back pain limiting trunk range of motion and daily function. He had difficulty obtaining positions of rest. He was noted to have been active working at home doing home remodeling, exterior work, etc. Trunk findings revealed flexion to 20 degrees with bilateral lumbar pain reported, extension to 20 degrees, and lateral flexion to 15 degrees bilaterally. Short term therapy goals included increasing trunk flexion to 45 degrees in standing. On file is a statement dated in October 2008 from J.A.L., explaining that for the most part she was the primary person who took the Veteran to his scheduled medical appointments for the past eight years. She said that at such times the Veteran confided in her the amount of pain and discomfort he was suffering in his lower and upper back regions. She also said that on numerous occasions he has been unable to get out of bed due to his back/shoulder pain. She added that she has observed on numerous occasions his inability to bend over, kneel down or lay down. A December 2008 VA "H&P Inpatient" record shows that the Veteran presented with a chief complaint of palpitation. Findings at that time revealed full range of motion of the lumbar spine for the Veteran's age and habitus. A VA outpatient addendum record in December 2008 shows that the Veteran's back was not tender and post straight leg raise was 60 degrees on the right and 40 degrees on the left. When sitting there was 90 degrees of leg flexion at the hip, with no complaint of back pain and no leg weakness. There was no Achilles or patellar reflex. Another VA outpatient record in December 2008 shows that the Veteran was having therapy on his back which felt good after treatment, but that the pain returns a few hours later. VA outpatient records in 2009 reflect intermittent complaints of low back pain. They include a January 2009 note that the Veteran's magnetic resonance imaging (MRI) had been reviewed and that he had a bulging disc. He was noted to have lumbar back pain on a February 2009 record. A July 2009 emergency room note for right leg pain shows that the Veteran had full range of motion of the lumbar spine. A July 2009 primary care record shows that the Veteran had lower back pain that was sharp and began two weeks earlier with radiation down the right leg. An orthopedic consult in July 2009 shows that range of motion was most limited on extension, but was restricted on all ranges. All motion was associated with severe back pain. The Veteran had a slight list to the right. Straight leg raise was restricted to 45 degrees on the right and 60 degrees on the left. There was no sensory deficit except in the area of the lateral femoral cutaneous nerve on the left. There was localized tenderness over the anterior compartment without any induration or tightness. X-rays showed loss of disc height L4/5 with minimal anterior steophytic reaction. The Veteran was diagnosed as having degenerative disc disease lumbar spine possibility with radicular symptoms. VA records also include a lumbar MRI report in September 2009 containing findings suggestive of mild dextroscoliosis, mild multilevel degenerative disc disease and spondyloarthritis. Also noted was mild canal stenosis at the L4-L5 level and neuroforaminal stenosis on the right at L4-L5 with evidence of nerve root impingement. The Veteran was assessed at a VA outpatient clinic in April 2011 as having chronic, paroxysmal, in the low back and in the right shoulder. His prescribed medication included codeine. A November 2011 VA examination report shows that the Veteran began experiencing low back pain in 1979 which had progressively worsened with pain, numbness and tingling going to the left upper leg. He was diagnosed as having lumbar spinal stenosis diagnosed in 1977, lumbar intervertebral disc syndrome diagnosed in 1980, and lumbar radiculopathy diagnosed in 1980. Range of motion of the lumbar spine revealed flexion to 28 degrees with pain, extension to 11 degrees with pain and to 12 degrees with pain after 3 repetitions. Right rotation was to 35 degrees where it remained after three repetitions, and left rotation was to 30 degrees, 31 degrees after three repetitions. Right side bending was 16 degrees with pain, 17 degrees with pain after three repetitions. Left side bending was 12 degrees with pain, 11 degrees with pain after three repetitions. He was noted to have functional loss in terms of less movement than normal, weakened movement, excess fatigability and pain on movement. There was pain in the low lumbar area above the sacroiliac joints. There was also guarding or muscle spasm in the thoracolumbar spine, but not severe enough to result in an abnormal gait or spinal contour. All muscle strength testing was normal as were reflexes and sensory examination. There was no muscle atrophy. Straight leg raising was positive on the left and negative on the right. Radiculopathy was noted. With respect to the left lower extremity, the examiner reported that the Veteran had mild constant pain, moderate parethesias and moderate numbness. There were no findings with respect to the right lower extremity. He had no other neurologic abnormalities or findings related to the thorocolumbar spine. He had no incapacitating episodes over the past as months due to intervertebral disc syndrome. He was noted to not use an assistive device and had no related scars. A lumbar MRI performed in July 2009 reportedly revealed L4, L5 stenosis and spondyloarthritis. The Veteran was found to have a functional impact from his thoracolumbar spine condition which impacted his ability to work. He was also noted to have pain and flare-ups with lifting, bending, pushing, pulling and carrying. III. Analysis Pertinent Criteria Generally, disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. In deciding the Veteran's increased evaluation claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the Court discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period (as in this case). Id. at 126. Hart extended Fenderson to all increased evaluation claims. When evaluating any musculoskeletal disability based upon a range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id. See also 38 C.F.R. §§ 4.40, 4.45 and 4.59. This pertinent rating formula is found under 38 C.F.R. § 4.71a, Diagnostic Code 5237, and provides for the assignment of a 30 percent rating for forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating may be assigned due to unfavorable ankylosis of the entire spine. Under notes to the rating formula: Note (1): 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 thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 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 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 (0 degrees) always represents favorable ankylosis. In providing a comprehensive discussion of applicable rating criteria, the Board cites to those provisions involving IVDS. Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, a 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Code 5243. Discussion As noted above, in order to be entitled to a rating in excess of 20 percent for the period from September 14, 2008, to November 1, 2011, the Veteran would have to demonstrate forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Code 5237. In terms of ankylosis, favorable or otherwise, this is not shown by the evidence of record. In terms of demonstrating forward flexion of the thoracolumbar spine 30 degrees or less, the evidence is inconsistent. On the one hand, there is the September 2008 private physical therapy that shows forward flexion of the trunk to 20 degrees with bilateral lumbar pain noted, and with a short-term goal of increasing flexion to 45 degrees. There is also a September statement from a caretaker of the Veteran of many years who said that she observed on numerous occasions his inability to bend over or lay down. In addition, there is a July 2009 VA record noting that range of motion was mostly limited on extension, but restricted on all ranges. This evidence is favorable to the Veteran's claim. Evidence that is not favorable to his claim consists of a December 2008 "H&P Inpatient" VA record noting that the Veteran had full range of motion of the lumbar spine for his age and habitus. There is also a December 2008 VA outpatient addendum noting that the Veteran demonstrated 90 degrees of flexion at the hip when sitting with no complaint of back pain, and a July 2009 emergency room report for right leg pain showing full range of motion of the lumbar spine. Though inconsistent, there is no basis to dispute any of the range of motion findings above. The findings were obtained by qualified medical personnel. Moreover, there is no basis to dispute the competence and credibility of the Veteran's caretaker who reported her observations of the Veteran's functional limitations. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). In short, the Board finds that both the positive and negative evidence is of approximately equal evidentiary weight. In these circumstances, the reasonable doubt created by this approximate balance of positive and negative evidence must be resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Thus, by resolving reasonable doubt in the Veteran's favor, the Board finds that an increased rating, to 40 percent, under Code 5237 is warranted for the period from September 14, 2008. As for entitlement to a higher than 40 percent rating at any point from September 14, 2008, in order to warrant a higher rating there would have to be evidence of ankylosis or intervertebral disc syndrome. See 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5243. In this regard, as the evidence outlined above shows, the Veteran was able to move his thoracolumbar spine and there is no evidence of ankylosis of the thoracolumbar spine or intervertebral disc syndrome. In addition, as noted above, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain, weakness, premature or excess fatigability, and incoordination. See Deluca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Here, the Veteran does have functional impairment which the November 2011 VA examiner identified as less movement than normal, weakened movement, excess fatigability and pain on movement. However, repetition on the range of motion three times only changed by one degree, if at all. In short, while there is dispute as to the functional limitations noted above due to the Veteran's service-connected back disability, there is nothing to suggest the functional equivalent of fixation of complete immobility of the lumbar spine. Consequently, a higher rating is not warranted on this basis. In terms of intervertebral disc syndrome, the November 2011 VA examiner reported that the Veteran did not have incapacitating episodes over the past 12 months due to intervertebral disc syndrome. Accordingly, there is no basis for a higher rating at any point from September 2008. 38 C.F.R. § 4.71a, Code 5243. As far as neurologic findings, the only symptoms found were related to the Veteran's left lower extremity for which he is already service connected. See May 2012 rating decision. In conclusion, there is reasonable doubt with respect to the question of whether the Veteran meets the criteria for a 40 percent rating under Code 5237 for the period from September 14, 2008, to November 1, 2011, for service-connected orthopedic manifestations of mechanical low back pain. Thus, by resolving reasonable doubt in his favor, the claim for a higher, 40 percent rating, for this period is granted. 38 C.F.R. § 4.3. Also, for the foregoing reasons, the preponderance of the evidence weighs against a rating higher than 40 percent for this disability for the period from September 14, 2008. As the preponderance of the evidence is against the Veteran's claim in this regard, the benefit-of-the-doubt rule is not for application and the claim must be denied. 38 U.S.C.A. § 5107(b). Extraschedular Consideration Finally, the Board has considered whether higher ratings for service-connected orthopedic manifestations of mechanical low back pain are warranted on an extraschedular basis. The potential application of 38 C.F.R. § 3.321(b)(1) has been considered. However, the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." Manifestations of the Veteran's mechanical low back pain have been considered to specifically include his complaints, range of motion findings and functional limitations. The Board thus finds that the ratings assigned are precisely that contemplated for these disabilities. See Thun v. Peake, 22 Vet. App. 111 (2008). The Board concludes that the Veteran has not demonstrated such a degree of disability so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the criteria for referral for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, although there is evidence that the Veteran's service-connected orthopedic manifestations of mechanical low back pain impacts his ability to work, see November 2011 VA examination report, further consideration of a total disability rating based on individual unemployability (TDIU) is not warranted in light of the RO's grant of a TDIU in October 2008. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Moreover, a 100 percent schedular rating is now in effect. ORDER Entitlement to a rating in excess of 20 percent, to 40 percent, for orthopedic manifestations of mechanical low back pain for the period from September 14, 2008, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a rating in excess of 40 percent for orthopedic manifestations of mechanical low back pain from September 14, 2008, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs