Citation Nr: 1335309 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 08-14 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a disability rating in excess of 20 percent prior to April 9, 2011, and in excess of 40 percent thereafter, for degenerative disc disease of the lumbosacral spine with herniated discs. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1990 to August 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), that denied an increased rating in excess of 10 percent. In November 2012, a Decision Review Officer increased the rating for the lumbar spine disability to 20 percent effective November 28, 2011, based on limitation of motion at a VA examination on April 9, 2011. The Veteran continued his appeal for a higher rating. AB v. Brown, 6 Vet. App. 35, 38 (1993). The issue has been recharacterized to comport with the date of the Veteran's VA examination, April 9, 2011. In his substantive appeal to the Board, the Veteran requested a video-conference hearing before a member of the Board. He was notified of his scheduled August 2013 hearing by letter in July 2013, but did not attend the hearing or subsequently request a new hearing. His hearing request is deemed withdrawn. FINDING OF FACT 1. Prior to April 9, 2011, the Veteran's lumbar spine disability manifested with pain and forward flexion to 75 degrees, including upon repetitive motion; without ankylosis, incapacitating episodes due to intervertebral disc syndrome (IVDS), or neurological abnormality. 2. From April 9, 2011, the Veteran's lumbar spine disability manifested pain and forward flexion to 60 degrees, including upon repetitive motion; without ankylosis, incapacitating episodes due to intervertebral disc syndrome (IVDS), or neurological abnormality. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent prior to April 9, 2011, and in excess of 40 percent thereafter, for degenerative disc disease of the lumbosacral spine with herniated discs, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A November 2006 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a November 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield, 444 F.3d at 1333-34. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any outstanding records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). VA examinations were conducted in November 2006 and April 2011; the Veteran has not argued, and the record does not reflect, that these examinations and opinions were inadequate for rating purposes. 38 C.F.R. § 3.159(c)(4); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Sanders, 129 S. Ct. 1696; see also Dingess/Hartman, 19 Vet. App. at 486. REASONS AND BASES FOR FINDINGS AND CONCLUSION Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss due to pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran undertaking the motion is a factor. Weakness is also an important. 38 C.F.R. § 4.40. When evaluating the joints, factors to consider include less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating 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. A 20 percent disability rating is assigned 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 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. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. 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. Under DC 5243, intervertebral disc syndrome is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes a 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted 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. As per Note (1) of the DC, for purposes of evaluations under DC 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. Analysis The Veteran's degenerative disc disease of the lumbosacral spine with herniated discs is currently rated 10 percent disabling prior to November 28, 2011, and 20 percent disabling thereafter. The Veteran contends that the current evaluations do not adequately contemplate his functional loss and pain on movement. He reports that his back disability is worsening and continues to be debilitating, noting he often calls in sick due to his back pain. Medical treatment records from VAMC Palo Alto in May 2006 and February 2007 showed complaints of recurrent low back pain with difficulty getting out of bed at times. A September 2007 MRI showed degenerative disc disease at L4-L5 and L5-S1, resulting in mild to moderate neural foraminal stenosis at L4-L5. On VA examination in November 2006, the Veteran complained of constant mild back pain. He reported that pain flared when he lifted heavy objects or stomped. Severe pain, which radiated into his sides, occurred approximately once per week and could last from two to seven days. He denied weakness, sensory loss, bowel or bladder incontinence and incapacitating episodes within the past year. He reported that the pain did not interfere with his daily activities and that he was able to feel the pain but still functioned. On examination, there was positive tenderness over the lower thoracic spine, no pain over the lumbosacral spine, and paraspinous muscles were tense. The Veteran had a normal gait. Range of motion showed flexion from zero to 75 degrees; extension to 20 degrees; right lateral rotation to 15 degrees; left lateral rotation 20 degrees, right lateral flexion to 20 degrees, and left lateral flexion to 15 degrees. Repeated of range of motion did not change and was not additionally limited by pain and coordination, fatigability, or lack of endurance. He was able to walk easily on his heels and toes. Strength was 5/5 in the arms and legs. There was no pronator drift. Deep tendon reflexes were brisk throughout and bilaterally symmetric. Toes were downgoing. Sensation to light touch and prick was normal. Imaging studies showed normal alignment of the vertebral body; narrowing of L5-S1 intervertebral disc space; mild but somewhat generalized degenerative vertebral body spurring; no evidence of fracture or subluxation; and mild degenerative change of the S1 joints. The diagnosis was lumbosacral strain and possible degenerative joint disease. On VA examination in April 2011, the Veteran reported constant lower back pain, fatigue, decreased motion, stiffness, weakness, and spasms. He did not report flare-ups, numbness, weakness, paresthesias, bowel or bladder incontinence, or incapacitating episodes. He has been employed as a custodian for the past five to ten years, and he has not missed work due to his back disability. On examination, gait and posture were normal. Range of motion showed flexion from zero to 60 degrees; extension from zero to 15 degrees; right and left lateral rotation from zero to 20 degrees; and right and left lateral flexion from zero to 20 degrees. There were no flare-ups, and no additional limitations following repetitive use, other than pain without further loss of motion. There was no effect of incoordination, fatigue, weakness, or lack of endurance on his spinal function. Reflexes were normal in the upper and lower extremities. Sensory functions of the upper and lower extremities were normal. The Lasegue's test, or straight leg raising test, was negative. Motor strength was 5/5 throughout the upper and lower extremities. Sensation was intact to sharp/dull in all dermatomes of both lower extremities. The diagnosis was degenerative disc disease of the lumbar spine, L4-L5. Prior to November 28, 2011, the Veteran's disability was assigned a 10 percent rating. For reasons which are not clear to the Board, the November date was used by the RO for the staged ratings assigned when, in fact, the date of the VA examination was April 9, 2011. This, correct, date is used for the remainder of the analysis. The next highest rating under DC 5242 is 20 percent and requires evidence of either forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Prior to April 9, 2011, the only measurements of the lumbar spine range of motion are reflected in the November 2006 VA examination report. The report showed forward flexion was possible to 75 degrees and a combined range of motion of 165 degrees with pain and no evidence of additional functional loss. In addition, there is no evidence of guarding, abnormal gait, or abnormal spinal contour. Even with consideration of the DeLuca principles, lumbar flexion did not more closely approximate greater than 30 degrees but not greater than 60 degrees or a combined range of motion no greater than 120 degrees. The evidence fails to show muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Accordingly, the criteria for a higher rating of 20 percent are not met under the general formula prior to April 9, 2011. Alternately, a showing of IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months would warrant a 20 percent rating under DC 5243. There is, however, no evidence of physician-prescribed bed rest for any period of time during the appeal period in question and the Veteran denies any such episodes. A higher rating may not be assigned under DC 5243 on the basis of incapacitating episodes. From April 9, 2011, the only measurements of the lumbar spine range of motion are reflected in the April 9, 2011 VA examination report. The report showed forward flexion was possible to 60 degrees with pain and no evidence of additional functional loss with repetition. This warrants a 20 percent rating. The next higher, 40 percent rating requires evidence of forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. As neither of these criteria are demonstrated, even with consideration of DeLuca, supra, a 40 percent rating is not warranted. Alternately, a showing of IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months would warrant a 40 percent rating under DC 5243. There is no evidence of physician-prescribed bed rest for any period of time during the appeal period in question and the Veteran denies any such episodes. A higher rating may not be assigned under DC 5243 on the basis of incapacitating episodes. An extraschedular rating is warranted when the established schedular criteria are inadequate to describe the severity and symptoms of the claimant's disability; the case presents other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and such an award is in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The rating criteria adequately contemplate the manifestations of the Veteran's lumbar spine disability. The disability is productive of pain and limited motion. In an October 2007 statement to the Board, the Veteran reported that his back disability impacts his job as it causes pain when cleaning floors and lifting heavy objects; that he often has to call in sick; and experiences lack of stamina, weakness or fatigue, and pain. On VA examination in April 2011, however, he reported that he has been assigned different duties at work. These manifestations are contemplated in the pertinent rating criteria; and the rating criteria are adequate to evaluate the Veteran's disabilities. Referral for consideration of extraschedular rating is not warranted. The Veteran is currently employed. He has not expressly raised and the record does not reasonably raise the claim for a total disability rating for compensation based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Clarification of Effective Date The Veteran's degenerative disc disease of the lumbosacral spine with herniated discs is currently rated 10 percent disabling prior to November 28, 2011, and 20 percent disabling thereafter. Generally, the effective date for an increased rating is the date of receipt of the claim or date entitlement arose, whichever is later. If the criteria for an increase are met after the date of the claim, the effective date is the date the criteria for an increase were met. 38 C.F.R. § 3.400(o)(1). In August 2006, the Veteran filed a claim for a rating in excess of 10 percent for degenerative disc disease of the lumbosacral spine with herniated discs. A VA examination was provided in November 2006 and the claim for increase was denied in an April 2007 decision. An April 2011 VA examination report showed that the Veteran's current back disability warranted a 20 percent disability rating. The record is absent any evidence that the Veteran's back disability warranted a higher rating prior to the April 9, 2011, VA examination. ORDER A disability rating in excess of 10 percent prior to April 9, 2011, and in excess of 20 percent thereafter, for degenerative disc disease of the lumbosacral spine with herniated discs, is denied. ___________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs