Citation Nr: 1335303 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-00 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent prior to March 21, 2012 for degenerative disc disease (DDD) and degenerative joint disease (DJD) of the lumbar spine. 2. Entitlement to a disability rating in excess of 40 percent since March 21, 2012, for DDD and DJD of the lumbar spine. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from December 1985 to January 2007. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that granted service connection for DDD and DJD of the lumbar spine, and assigned an initial noncompensable disability rating, effective from February 1, 2007. In a subsequent February 2009 rating decision, the Veteran's service connected lumbar spine disability rating was increased to 10 percent, effective from February 1, 2007. Thereafter, in May 2012, the RO again increased the Veteran's lumbar spine disability to 40 percent, effective from March 21, 2012. In this decision, the Board is addressing the claim of entitlement to an initial disability rating in excess of 10 percent prior to March 21, 2012. However, the issue of entitlement to a disability rating in excess of 40 percent for DDD and DJD of the lumbar spine is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to March 21, 2012, even considering the Veteran's pain and corresponding functional impairment, including during flare-ups, the preponderance of the evidence shows that his degenerative changes of the lumbar spine has been productive of pain with forward flexion of the thoracolumbar spine greater than 60 degrees, with no evidence of muscle spasms or guarding. 2. Prior to March 21, 2012, the Veteran's low back disability is not manifested by incapacitating episodes of intervertebral disc disease requiring bed rest prescribed by a physician. CONCLUSION OF LAW Prior to March 21, 2012, the criteria for an initial disability rating in excess of 10 percent rating for DDD and DJD of the lumbar spine have not been met. 38 U.S.C.A. §§1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§3.102, 3.321, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veteran's appeal arises from his disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the claims has been obtained. The Veteran's service treatment records and VA and private treatment records have been obtained. He has not indicated there are any additional records that VA should seek to obtain on his behalf. Relevant to the initial period on appeal, prior to March 21, 2012, he also was provided with VA examinations in September 2006 and December 2008. The Board finds that the reports of the VA examinations are adequate for evaluation purposes because the examiner conducted a clinical evaluation, reviewed the medical history, and described the disability in sufficient detail so that the Board's evaluation of the claimed disability is an informed determination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). II. Analysis For the period prior to March 21, 2012, the Veteran asserts that due to his pain and corresponding functional impairment, and the episodic nature of his symptoms, a rating of at least 20 percent is warranted. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). 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 (2013). 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 her disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). As it pertains to the Veteran's DDD and DJD of the lumbar spine, his claim arises from his disagreement with the initial rating assigned following the grant of service connection, some discussion of the Fenderson case is warranted. Fenderson, 12 Vet. App. at 125-126. In Fenderson, the Court noted the distinction between a new claim for an increased evaluation of a service-connected disability and a case, as here, in which the Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been service connected. In this instance, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." Id. 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 (2013). Reasonable doubt is resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2013). The Veteran's disability is currently rated at 10 percent, effective from February 1, 2007, pursuant to DC 5242, which directs VA to rate the Veteran under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, DC 5237-5243 (2013). Under DC 5243, this disability is rated according to the number of incapacitating episodes a person has had in the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See Note (1) to DC 5243. Under the formula, a 10 percent rating is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 month period, a 20 percent rating is assigned for incapacitating episodes having a total duration between 2 to 4 weeks during the past 12 month period, a 40 percent rating is assigned for incapacitating episodes having a total duration between 4 to 6 weeks during the past 12 month period, and a 60 percent rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings 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. Otherwise, under 38 C.F.R. § 4.71a, DCs 5235 to 5243, spine disorders are to be rated under the General Rating Formula for Diseases and Injuries of the Spine on the basis of limitation of motion. Under these diagnostic codes, a 10 percent rating is assigned when forward flexion of the thoracolumbar spine is 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. A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned when there is unfavorable ankylosis of the thoracolumbar spine only. Finally, a 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine. As described above, the higher rating for 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71, DC 5242. The Court, citing Dorland's Illustrated Medical Dictionary (28th ed. 1994), has recognized that ankylosis is defined as "immobility and consolidation of a joint due to disease, injury or surgical procedure," for VA compensation purposes. See Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). The General Rating Formula for Diseases and Injuries of the Spine, provide further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are 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. See also Plate V, 38 C.F.R. § 4.71a. For the rating period prior to March 21, 2012, the relevant evidence includes VA examinations dated in September 2006 and December 2008, VA treatment records, and private treatment records. The Veteran's private treatment records from the Nexus Pain Center dated from August 2007 to November 2008, show his continuous complaints of pain and treatment for his service-connected lumbar disability and associated symptoms. These records do not, however, contain any objective range of motion findings. The private treatment records did indicate the Veteran suffered from right lower extremity radiculopathy. There was no evidence of any other neurological impairments, including bowel or bladder problems. Similarly, the Veteran's VA treatment records show he has continuously complained of pain associated with is lumbar disability. These records, dated through March 2012, also do not include objective range of motion findings but confirmed the findings as noted in the private treatment records. In September 2006, in connection with his claim of entitlement to service connection for the lumbar spine disability, the Veteran had a VA examination. At that time, the examiner provided diagnoses of DJD and spondylolisthesis. The Veteran reported constant pain, stiffness, and weakness in the low back. The Veteran also reported that he was not receiving any treatment for his back disorder and that there was no incapacitation. The only functional impairment noted was difficulty in bending and lifting. Upon physical examination, range of motion testing revealed flexion to 90 degrees; extension to 30 degrees; right and left lateral flexion to 30 degrees; and right and left lateral rotation to 30 degrees. The examiner stated there was no additional limitation due to pain, fatigue, weakness, lack of incoordination or endurance after repetitive use. Additionally, there was no evidence of IVDS with chronic and permanent nerve root involvement. Finally, the examiner determined that the Veteran's motor and sensory functions of the lower extremities were within normal limits. There was no evidence of bowel or bladder impairments associated with the lumbar spine disability. The Veteran was reexamined in December 2008 to assess the severity of his lumbar disability. The Veteran stated that he was taking Percocet twice daily. He stated the pain occurs daily and described it as dull and moderate. He also reported fatigue, decreased motion, stiffness, weakness, spasms, and pain down his right leg. Upon physical examination, range of motion testing revealed flexion to 80 degrees; extension to 30 degrees; right and left lateral flexion to 30 degrees; and right and left lateral rotation to 30 degrees. The examiner stated there was pain on active range of motion no additional limitation due to pain, fatigue, weakness, lack of incoordination or endurance after repetitive use. The examiner reported there was no evidence of muscle spasms, tenderness or guarding of the lumbar spine. There was also no evidence of incapacitating episodes or ankylosis of the spine. The examiner indicated the Veteran was employed full time, without any lost time from work. The examiner noted the effect of the Veteran's disability on occupational activities was significant, with decreased mobility, problems lifting and carrying, and decreased strength and pain in the lower extremity. There was no evidence of bowel or bladder impairments associated with the lumbar spine disability. For the period prior to March 21, 2012, the Board has considered whether a higher disability rating is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 (2013) and 4.45 (2013). Mitchell. To receive disability compensation, however, for painful motion, that pain must result in functional loss, i.e., limitation in the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination or endurance." See 38 C.F.R. § 4.40; see also Mitchell, 25 Vet. App. at 38. In other words, "although pain may cause functional loss, pain itself does not constitute functional loss" that is compensable for VA benefit purposes. Mitchell, 25Vet. App. at 37. The Veteran has consistently complained of low back pain and other associated symptoms, which were noted during his VA examinations in September 2006 and December 2008. Despite the Veteran's complaints of pain, this did not result in limitation of flexion to 60 degrees, as is required for a 20 percent rating. As indicated, there was no evidence of muscle spasms or guarding in either the September 2006 or the December 2008 VA examinations, or as evidenced in his private and VA treatment records. The Veteran was still able to demonstrate range of motion during both of his VA examinations to the points indicated above. Although pain may cause functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. In addition, the Board acknowledges that the Veteran treats his low back disability with pain medications, including Percocet. Here, given the objective findings of the range of motion studies, the Board concludes that the 10 percent rating most closely approximates the Veteran's functional loss due to limitation of motion. Cf. Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) (holding that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria). The Board has also considered whether the Veteran's service-connected lumbar spine disability has resulted in incapacitating episodes and the duration of any such episodes as described under Diagnostic Code 5243. The Veteran's VA examinations, private treatment records, and VA treatment records all fail to show that he has had incapacitating episodes due to his lumbar spine disorder, which required bed rest prescribed by a physician. That is, no incapacitating episode as defined by VA has been shown. Therefore, a higher evaluation is also not assignable under Diagnostic Code 5243. In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. The only evident associated neurologic manifestations are left and right radiculopathy of the lower extremities. However, the Board notes that the RO has already adjudicated the Veteran's entitlement to separate disability ratings for these associated disabilities. In Tyrues v. Shinseki, 23 Vet. App. 166 (2009) (en banc) the Court recognized that VA has broad discretion to dismember a claim and adjudicate the pieces in jurisdictionally separate proceedings. See also Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) ("Bifurcation of a claim generally is within VA's discretion."). Here, as in Tyrues, VA separately adjudicated the Veteran's entitlement to separate disability ratings for right and left lower extremity radiculopathy. In an August 2013 statement, the Veteran was very clear in his intent to only pursue a higher rating for his lumbar spine disability. Therefore, the Board need not consider whether the Veteran is entitled to higher ratings for service connected right and left lower extremity radiculopathy. In reaching the above conclusions, the Board has not overlooked the Veteran's statements with regard to the severity of his lumbar spine disability. In this regard, the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing chronic pain and stiffness in his back. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence with respect to the presence of pain and the severity of such during his VA examinations. He is competent to provide such statements, and the Board finds that the Veteran's statements are credible. The Veteran's reported symptomatology has been noted in the rating decisions above, and the Board has considered the Veteran's reports with respect to pain in evaluating his assigned rating. With respect to the Rating Schedule, the criteria set forth therein generally require medical expertise where the types of findings required are not readily observable by a lay person. Therefore, the objective medical findings provided by the Veteran's VA examination reports have been accorded greater probative weight where applicable. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) ("[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches . . . the credibility and weight to be attached to these opinions [are] within the province of the adjudicator."). The RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1) (2013). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The Board finds that the rating criteria contemplate the Veteran's lumbar spine disability. The Veteran's disability is manifested by pain and limitation of motion. These manifestations are contemplated in the applicable rating criteria. The Board does not find that the Veteran has described other functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluation. Rather, his description of low back symptomatology is consistent with the degree of disability addressed by such evaluations. Therefore, the rating criteria are adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. Finally, the Court has held that entitlement to total disability based on individual unemployability (TDIU) is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, for the period prior to March 21, 2012, the December 2008 VA examiner noted that the lumbar spine disability impacts the Veteran's ability to work because of decreased motion and difficulty lifting and bending, but that he works full time. Additionally, the Veteran himself has not alleged that he is unemployable as a result of his lumbar spine disability. Accordingly, for this initial period on appeal, Rice considerations are inapplicable in this case. ORDER A rating in excess of 10 percent prior to March 21, 2012 for DDD and DJD of the lumbar spine is denied. REMAND Concerning the Veteran's claim of entitlement to a disability rating in excess of 40 percent since March 21, 2012 for the lumbar spine disability, the Board finds additional development is required. The Veteran was most recently examined in July 2013 to assess the current severity of his lumbar spine disability. At that time, the VA examiner noted that range of motion testing was unable to be completed because the Veteran has ankylosis. However, the examiner failed to state whether the ankylosis may be considered favorable or unfavorable, and whether it pertains to the Veteran's entire spine, or only his lumbar spine. As noted above, pursuant to 38 C.F.R. § 4.71a, DCs 5235 to 5243, a 40 percent rating is assigned when there is favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is assigned when there is unfavorable ankylosis of the thoracolumbar spine only; and, a 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine. The Board notes that the Court has held once VA undertakes an examination, even if not required to do so, an adequate one must be produced. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also 38 C.F.R. § 4.2 (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). Therefore, since this examination is inadequate for rating purposes for the reasons noted above, a remand is required in order to accord the Veteran an adequate examination to assess the severity of his lumbar spine disability since March 21, 2012. On remand, any outstanding treatment records regarding the Veteran's lumbar spine disability relevant to the period since March 21, 2012, should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain any additional VA or private treatment records pertinent to the period since March 21, 2012, regarding the Veteran's lumbar spine disability. 2. The RO should notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his lumbar spine disability. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate the nature and severity of his service-connected lumbar spine disability. The claims folder should be made available to and reviewed by the examiner. The examiner must state whether the Veteran has favorable or unfavorable ankylosis of the spine. If the Veteran does not have ankylosis, range of motion studies should be performed. All findings and conclusions should be set forth in a legible report. 4. Then readjudicate the appeal. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental SOC (SSOC) and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs