Citation Nr: 1334900	
Decision Date: 10/31/13    Archive Date: 11/06/13

DOCKET NO.  07-35 507	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1. Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability from August 29, 2006 to September 9, 2011.

2. Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability after September 9, 2011.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

C. Bruce, Counsel


INTRODUCTION

The Veteran served on active duty from October 1987 to May 1997.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, that granted service connection for a lumbar spine disability and assigned an initial rating of 10 percent, effective August 29, 2006.

During the course of the appeal, a May 2012 rating decision increased the initial rating to 20 percent, effective from September 9, 2011.  Since the Veteran indicated that he was seeking a rating in excess of 20 percent, the matter remains in appellate status.  See AB v. Brown, 6 Vet. App. 35 (1993).  The Board remanded the matter in July 2011 for additional development.

A review of the Virtual VA and VBMS paperless claims processing systems was conducted.


FINDINGS OF FACT

1. The Veteran's lumbar spine disability is manifested by forward flexion limited to, at worst, 90 degrees, and combined range of motion at worst, limited to 230 degrees, with no evidence of muscle spasm or guarding severe enough to result in an abnormal gait, or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, prior to September 9, 2011.

2. The Veteran's lumbar spine disability, taking into consideration pain and repetitive motion, is manifested by at worst by 40 degrees of forward flexion and 130 degrees of combined range of motion of the thoracolumbar spine; no incapacitating episodes are shown, from September 9, 2011.


CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2009); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2013).

2. The criteria for an initial rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2009); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5237 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 
The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 

Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet.App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet.App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet.App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). 
Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet.App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.App. 518 (1996).

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet.App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1).

In September 2006, the RO provided VCAA notice. The RO granted service connection for a lumbar spine disability in a December 2006 rating decision.

In cases like this one, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been substantiated, thereby rendering section 5103(a) notice no longer necessary because the purpose the notice is intended to serve has been fulfilled. See Dingess/Hartman v. Nicholson, 19 Vet.App. 473, 491 (2006).



The current appeal is a result of a notice of disagreement with the initial rating assigned, and there is no further duty to notify under VCAA. See 38 C.F.R. 
§ 3.159(b)(3)(i) (no duty to provide VCAA notice arises upon receipt of a notice of disagreement).

With regard to the duty to assist, the claims file contains the Veteran's service treatment records, VA and private medical records, multiple lay statements, and multiple VA examination reports. 

In the July 2011 remand the Board requested that the AMC afford the Veteran a new VA examination. The VA examination to include an opinion with regard to severity was obtained and the Board's remand instructions have been completed. See Stegall v. West, 11 Vet.App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required).

The Veteran was provided with VA examinations in November 2006 and September 2011. The reports of the examinations reflect that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate physical examination, and rendered an appropriate diagnosis consistent with the remainder of the evidence of record, and pertinent to the rating criteria. See Barr v. Nicholson, 21 Vet.App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examinations are adequate for rating purposes. See 38 C.F.R. § 4.2 (2013).

In Bryant v. Shinseki, 23 Vet App 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a Board hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2). At the March 2011 Travel Board hearing, the undersigned Veterans Law Judges and representative for the Veteran engaged in colloquies with the Veteran as to substantiation of the claims. The Veteran was asked about and provided testimony regarding the severity of his lumbar spine disability.  

Neither the Veteran nor his representative has identified any prejudice in the conduct of the Board's March 2011 hearing or contended that the Veteran does not fully understand the issues or the evidence that is required to substantiate his claim.  See 38 C.F.R. § 20.1102. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal.

All appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. 

All relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claims has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained.

Merits of theClaim

The Veteran was initially granted service connection and assigned a 10 percent disability rating for a lumbar spine disability in a December 2006 rating decision. The rating was effective August 29, 2006. The Veteran disagreed with this rating, alleging that his symptoms warranted a higher rating. The RO issued a decision in May 2012, granting a 20 percent rating effective September 9, 2011. 

The Veteran contends that an increased compensable evaluation for his service-connected lumbar spine disability is warranted due to such symptoms as increased pain and limitation of motion. The preponderance of the evidence is against a finding of entitlement greater than 10 percent prior to September 9, 2011, and 20 percent from September 9, 2011, and the appeal will be denied. 

The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012).

In considering the severity of a disability it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet.App. 282 (1991).

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). In cases such as this in which the Veteran has appealed the initial rating given at the time service connection is established, in assigning the initial rating, the Board must consider the propriety of assigning one or more levels of rating, referred to as "staged" ratings, from the initial effective date forward, based on evidence as to the severity of disability. See Fenderson v. West, 12 Vet.App. 119, 126-7 (1999).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Generally, VA must consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment).

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).

The Court has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. 



Pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment).

Diagnostic Codes 5237 through 5243 are applicable to the spine. Of particular interest in this instance is Diagnostic Code 5237 which governs ratings of lumbosacral or cervical strain. The current General Rating Formula for Diseases and Injuries of the Spine provides that 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, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. An evaluation of 20 percent is warranted for 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 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, reversed lordosis, or abnormal kyphosis. An evaluation of 40 percent is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine.

There are several notes set out after the diagnostic criteria, a summary of which is as follows:

First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1).

Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion of 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 to 240 degrees. Further, the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. See Id. at Note (2).

Third, 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 the regulation. See Id. at Note (3). 

Fourth, each range of motion should be rounded to the nearest 5 degrees. See Id. at Note (4).

Fifth, 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. See Id. at Note (5).

Sixth, disabilities of the thoracolumbar and cervical spine segments are to be evaluated separately, except when there is unfavorable ankylosis or both segments. See Id. at Note (6).

Additionally, Diagnostic Code 5243 governs ratings of intervertebral disc syndrome, either on the total duration of incapacitating episodes over the past 12 months, or by combining under 38 C.F.R. § 4.25 (combined rating tables) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, which ever method results in the higher evaluation. A maximum 60 percent rating is warranted when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months. A 20 percent rating is assigned for incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, and a 10 percent rating is assigned with the incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the past 12 months.

Note 1 provides that for the purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is 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. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so.

Note 2 provides that when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurological disabilities separately using evaluation criteria for the most appropriate neurological diagnostic code or codes. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013).

Prior to September 9, 2011

The Veteran was afforded a VA examination in November 2006. The Veteran stated that he missed two days of work in the previous year as a result of his back. The Veteran reported chronic low back pain that flares mildly each day resulting in pain, stiffness, and spasms with any bending or twisting. Stiffness was worst in the mornings. Prolonged sitting or standing made the pain worse. There was no evidence of surgery or use of assistive devices. Upon examination it was noted the Veteran walked with a normal gate. There was no neurologic or motor function limitation and no cyanosis, clubbing, or edema in his extremities. The Veteran exhibited full flexion to 90 degrees, but limited extension to only 20 degrees as a result of pain. Bilateral rotation and lateral flexion were normal at 30 degrees. The examiner noted there were no other limitations of motion to due to weakness, fatigue incoordination, or instability. The Veteran was diagnosed with chronic lumbar strain. X-rays taken in conjunction with the examination were normal.

Private treatment records dated in September 2006 noted that the Veteran had tenderness to palpation of the parspinal region with a decreased range of motion on forward flexion. Neurologic examination was normal. A February 2007 letter from the Veteran's treating private physician noted that the Veteran took pain relievers and muscle relaxants everyday and that the pain affected his work every day. An April 2011 private treatment note stated that the Veteran was morbidly obese, with scoliosis of the thoracic spine with significant limitation of motion, however a May 2011 scoliosis survey noted no significant findings. A May 2011 MRI of the spine revealed minimal degenerative facet disease at L3-L4, L4-L5, and L5-S1 with mild disc height loss at L3-L4 and straightening of the posterior disc annulus.

At his March 2011 travel board hearing, the Veteran stated that he had pain that radiated from his lower back to the center of his back and back spasms almost every day. He stated he could only sit for 15-20 minutes at a time and that he had to get up and walk after that. He noted he could not bend over and touch his toes; he would have to kneel down to do that. 

The preponderance of the evidence is against a finding that the spine disability should be rated higher than the currently assigned 10 percent rating prior to September 9, 2011. The Veteran has forward flexion to 90 degrees and combined range of motion of 230 degrees. The next higher rating of 20 percent would require forward flexion greater than 30 degrees, but not greater than 60 degrees, or a combined range of not greater than 120 degrees. There was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. As such, the Veteran is not entitled to an increased rating in excess of 10 percent for his low back strain. See 38 C.F.R. §4.71a, Diagnostic Code 5237.

From September 9, 2011

The Veteran was afforded a VA examination in September 2011. The Veteran noted he had not missed any work in the year prior as a result of his back. The Veteran reported taking medication for muscle spasms 1-2 times per week and medication for low back pain 2-3 times per week. He described daily muscle spasms and stiffness in the morning. Sitting for long periods of time (more than 15-20 minutes) caused his pain to increase and he would have to walk around to ease the pain. Pain increased with strenuous activity. He noted no weakness or fatigue and stated that the pain did not radiate. He reported no incapacitating episodes requiring physician ordered bed rest in the last year. 

Upon examination the Veteran had a normal gait, but squatting was mildly limited due to low back pain. Deep tendon reflexes and motor strength were normal. The examiner noted a decrease in the usual lumbar lordosis, but noted no scoliosis. The Veteran exhibited limitation of motion with flexion to 80 degrees with pain starting at 40 degrees, extension to 20 degrees with pain starting at 10 degrees, bilateral lateral flexion to 30 degrees with pain starting at 25 degrees, and bilateral lateral rotation to 15 degrees with pain starting at 15 degrees. Following three repetitions, the Veteran's lumbar flexion range decreased to 45 degrees, with no changes in the other ranges of motion. His pain level increased from 3/10 to 8/10 during the examination. The examiner noted that the Veteran did not exhibit any exaggerated pain behavior. The examiner noted that the change in active range of motion upon repetitive motion was significant and recommended an additional 30 degree loss of range of motion due to painful motion. Weakness and fatigue did not cause additional limitation. The examiner diagnosed very early lumbar degenerative disc disease and spondylosis with painful, limited range of motion, but no evidence of lumbosacral radiculopathy.

The preponderance of the evidence is against a rating higher than the 20 percent that is currently assigned from September 9, 2011. At its worst, the back disorder manifests range of motion of the thoracolumbar spine that is limited to 80 degrees of flexion with pain and 40 degrees of flexion without pain with a combined range of motion of 190 degrees with pain and 130 degrees without pain. For a higher rating to be assigned there would have to be evidence of forward flexion limited to 30 degrees or less, or ankylosis, either favorable or unfavorable. While the Veteran's range of motion is limited, there is no evidence that the Veteran's forward flexion is limited to 30 degrees or less, and no evidence of ankylosis and as such the Veteran is not entitled to a higher rating under Diagnostic Code 5237.

The Board has considered 38 C.F.R. §§ 4.40, 4.45, 4.59, and the additional limitation of motion upon repetitive use noted in the September 2011 VA examination. However, the 20 percent evaluation during this period adequately portrays any functional impairment, pain, and weakness that the Veteran experiences as a consequence of use of his lumbar spine disability. See supra Spurgeon v. Brown, 10 Vet. App. 194 (1997).

With regard to whether the Veteran is entitled to a higher rating under another diagnostic code the Board notes initially that the Veteran did not exhibit any neurological symptoms that would warrant a higher rating under another diagnostic code. Moreover, while the Veteran was diagnosed with degenerative disc disease and as such a rating under Diagnostic Code 5243, for intervertebral disc syndrome must be considered, there is no evidence that the Veteran had any incapacitating episodes at any point during the appeal period. A higher rating under Diagnostic Code 5243 would require incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A higher rating under Diagnostic Code 5243 is therefore not warranted.

The Board has considered the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, there is no basis upon which to assign a rating higher than 10 percent prior to September 9, 2011 or higher than a 20 percent evaluation from September 9, 2011. The competent evidence fails to reveal any additional functional impairment associated with such disability to warrant consideration of alternate rating codes, other than the codes already considered herein.

The Board has considered the Veteran's statements regarding the severity of his lumbar spine disability. The Veteran is competent to attest to the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). However, the clinical findings reported on examination are more probative than the Veteran's statements as the Veteran is not shown to have the requisite training to determine the severity level of her service-connected low back disability. See Smith v. Derwinski, 1 Vet. App. 235, 237 (1991) (determining the credibility of evidence is a function for the Board). Furthermore, the Veteran's subjective report has been investigated in the light of the Rating Schedule and the preponderance of all the relevant evidence is against the claim. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2) (2013).

Extraschedular Considerations

Under Floyd v. Brown, 9 Vet.App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration.

According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet.App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet.App, 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.

First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.

Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."

Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected lumbar spine disability. The medical evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the symptomatology of the Veteran's disability centers on his complaints of pain and limitation of motion. These symptoms are specifically contemplated under the assigned ratings criteria. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule.

Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot.

The Board therefore has determined that referral of the case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.


ORDER

An initial rating in excess of 10 percent for a lumbar spine disability prior to September 9, 2011, is denied. 

An initial rating in excess of 20 percent for a lumbar spine disability after September 9, 2011, is denied.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs