Citation Nr: 1334923 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-01 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating in excess of 40 percent for service-connected spondylolisthesis since March 17, 2010. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1981 to March 1984. This appeal to the Board of Veterans' Appeals (Board) arises from a July 2008 rating decision issued by the RO in which the RO continued a 20 percent rating for the Veteran's service-connected spondylolisthesis of L5 on S1. During the pendency of the appeal, in a February 2011 rating decision, the RO granted an increased rating of 40 percent for the Veteran's spondylolisthesis of L5 on S1, effective March 17, 2010. As the 40 percent rating does not represent the highest possible benefit, this matter remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). Finally, the Board notes that a review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT The Veteran's spondylolisthesis of L5 on S1 is manifested, at worst, by forward flexion of 30 degrees with pain, with no evidence of ankylosis, and no physician-prescribed bed rest. CONCLUSION OF LAW Effective March 17, 2010, the criteria for a 40 percent rating for spondylolisthesis of L5 on S1 have been approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Codes 5235-5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must 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; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Compliant notice was sent in May 2008. Moreover, the record shows that the Veteran was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claim. Overton v. Nicholson, 20 Vet. App. 427 (2006). This case was remanded in September 2012 to afford the Veteran a new VA examination, as she alleged her disability had worsened since her last VA examination. The Veteran was afforded this examination in November 2012. Therefore, there was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). VA has obtained VA treatment records, assisted the Veteran in obtaining evidence, obtained a medical examination and opinion as to the severity of her disability, and afforded the Veteran the opportunity to give testimony before the Board although she declined this opportunity. VA's duty to assist a Veteran includes providing a thorough and contemporaneous examination when the record does not adequately reveal the current state of the Veteran's disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124). All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). This does not, however, preclude the assignment of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Under the General Rating Formula for Diseases and Injuries of the Spine (Spine Formula), 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, a 20 percent evaluation is warranted for disability of the thoracolumbar spine when there is 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5237 (2012). A 40 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling. Id. In addition to the Spine Formula, VA's regulations contain a Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Ratings under this diagnostic code are assigned according to the duration of "incapacitating episodes" throughout the year due to IVDS. An "incapacitating episode" is 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. Id. Pertinent to the current appeal, a 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Id. A 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. Finally, a 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. III. Factual Background In April 2008, the Veteran filed a claim for an increased evaluation for her service-connected spondylolisthesis of L5 on S1. A review of the medical and lay evidence during the relevant appeal period reveals the following signs and symptoms, in pertinent part, attributable to the Veteran's service-connected disability. As mentioned above, the RO granted an increased rating of 40 percent for the Veteran's spondylolisthesis of L5 on S1, effective March 17, 2010, the date of her last VA examination. In the March 2010 examination, the Veteran was diagnosed with spondylolisthesis of L5 on S1 and degenerative disc disease of the lumbar spine. The examiner noted that the Veteran's thoracolumbar range of motion was: flexion (35 degrees); extension (15 degrees); left lateral flexion (30 degrees); left lateral rotation (30 degrees); right lateral flexion (30 degrees), and right lateral rotation (30 degrees). The total range of motion was 170 degrees. The examiner found the Veteran had additional limitation in range of motion testing following repetitive-use testing, but did not diagnose spinal ankylosis. The examiner also found the Veteran had functional loss and/or functional impairment of the thoracolumbar spine that manifested itself in less movement than normal and pain on movement. The examiner noted the Veteran experienced decreased mobility, problems with lifting and carrying, lack of stamina, and decreased strength. The disability severely impacted the Veteran's chores and shopping, while moderately impacting recreation. The examiner found the Veteran would not be "insurable," and by extension, "would not be employable" due to the "continuous medical problems with ... her back condition." VA treatment records subsequent to the March 2010 examination detail the Veteran's extensive treatment for her back disability. She was noted, for example, to have a "burning sensation" in her lower back (November 2010). VA physicians prescribed multiple medications, including Baclofen, Gabapentin, Meloxicam, and Methadone to treat her pain. See March 2012 treatment record. Pursuant to the Board's September 2012 Remand, the Veteran was afforded a second VA examination in November 2012. The Veteran was diagnosed with anterior spondylolisthesis with bilateral spondylolysis and multilevel degenerative disc disease and intervertebral disc syndrome (IVDS) of the thoracolumbar spine. The examiner noted that the Veteran's thoracolumbar range of motion was: flexion (40 degrees); extension (0 degrees); left lateral flexion (10 degrees); left lateral rotation (5 degrees); right lateral flexion (5 degrees), and right lateral rotation (5 degrees). The total range of motion was 65 degrees. The examiner found the Veteran had additional limitation in range of motion testing following repetitive-use testing. The examiner also found the Veteran had functional loss and/or functional impairment of the thoracolumbar spine that manifested itself in pain on movement, interference with sitting, standing, and/or weight-bearing, disturbance of locomotion, and incoordination. The examiner noted the Veteran experienced guarding or muscle spasm of the thoracolumbar spine resulting in an abnormal gait. The Veteran reported she had incapacitating episodes of at least 4 weeks, but less than 6 weeks over the previous year. The examiner also noted the Veteran had to discontinue working because of her back disorder, and that the disorder did not allow the Veteran to "sit for prolonged periods," drive, or engage in "high impact activities." IV. Analysis A disability rating greater than 40 percent is not warranted for the Veteran's spondylolisthesis of L5 on S1 under the schedular criteria. The Veteran's range of motion does not meet the criteria for a 50 percent rating under DC 5242, as she was not diagnosed with unfavorable ankylosis of the entire throracolumbar spine. In the March 2010 VA examination, the Veteran had flexion of 35 degrees. Such flexion is rated as 20 percent disabling, but because of the Veteran's functional loss, the RO increased the Veteran's evaluation to 40 percent under Deluca in a February 2011 rating decision. At the November 2012 VA examination, the Veteran had 40 degrees of flexion with pain. A 40 percent evaluation is warranted when forward flexion of the spine is 30 degrees or less, or when there is favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. The Veteran's forward flexion exceeds the aforementioned 30 degree threshold. Additionally, the Veteran retained mobility in her thoracolumbar spine, and she did not manifest ankylosis of any form. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). Notwithstanding the Veteran's flexion, there is functional loss under Deluca, thereby meriting a continuation of the 40 percent evaluation. However, as she was not diagnosed with ankylosis, a 50 percent evaluation is not warranted. As for the Veteran's argument that she be rated under DC 5243 for IVDS, she was diagnosed with IVDS by the November 2012 examiner, but not the March 2010 examiner. Furthermore, despite the Veteran reporting incapacitating episodes during the 2012 examination, there is no evidence a physician prescribed bed rest for the Veteran. Such prescription is required to rate a back disorder under DC 5243. 38 C.F.R. § 4.71a. Accordingly, the Veteran's back disorder is rated under the Spine Formula. Id. Furthermore, there are no alternative diagnostic codes under 38 C.F.R. § 4.71a that would result in a higher rating. The above determination is based upon consideration of applicable rating provisions. The Board also finds that there is no showing that the Veteran's spine disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). The symptoms of her disability have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). The preponderance of the evidence is against the claim, and the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. The overall disability picture for the Veteran's back disability does not more closely approximate a 50 percent rating under the applicable Diagnostic Codes for the period March 17, 2010, to present. 38 C.F.R. § 4.7. ORDER Entitlement to a rating in excess of 40 percent for service-connected spondylolisthesis of L5 on S1 after March 17, 2010, is denied. ____________________________________________ Kelli A. Kordich Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs