Citation Nr: 1335454 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-19 699 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability rating higher than 20 percent for lumbar spine strain with intervertebral disc disease. 2. Entitlement to an initial rating higher than 30 percent for posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran had active service from June 1985 to June 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from July 2010 and July 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with this appeal. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The claim for entitlement an initial rating higher than 30 percent for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT Even considering pain and corresponding functional impairment, the Veteran's lumbar spine strain with intervertebral disc disease has been manifested by forward flexion of the thoracolumbar spine greater than 30 degrees; there is no evidence of incapacitating episodes having a total duration of at least four weeks; and there is no objective evidence of neurological manifestations warranting separate ratings. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for lumbar spine strain with intervertebral disc disease have not been. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). In this case, in September 2009, the Veteran was provided compliant VCAA notice regarding what information and evidence is needed to substantiate his claim for an increased rating for lumbar strain, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last adjudicated in January 2013. VA also has a duty to assist the Veteran in the development of the claim. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Records associated with the Veteran's claims file include service treatment records, post service treatment records, private treatment records and VA examination reports. The Veteran has not indicated the existence of additional pertinent evidence. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2013); see also 38 C.F.R. §§ 4.45, 4.59 (2013). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). By way of background, the RO granted service connection for lumbar strain in July 2005 and assigned a 10 percent disability rating. The Veteran filed the instant claim for an increased rating in September 2009. In a rating decision in July 2010, the RO continued the Veteran's 10 percent disability rating. By rating action in July 2011, the RO increased the Veteran's lumbar strain disability rating to 20 percent effective September 2, 2009, the date the claim for an increased rating was received. The Veteran continued to appeal for a higher rating. The Veteran's service-connected lumbar strain with intervertebral disc disease is currently rated as 20 percent disabling under Diagnostic Code 5243. The regulations provide for evaluation of the spine 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 evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, The Spine, Note (6) (2013). Under the General Rating Formula for Diseases and Injuries of the Spine, 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. A 20 percent rating 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 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 maximum rating in this case of 40 percent is warranted where there is forward flexion of the thoracolumbar spine of 30 degrees or less. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2013). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2 (2013). Any associated objective neurologic abnormalities are evaluated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. Alternatively, intervertebral disc disease can be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under that Formula, a rating of 10 percent is warranted where there are incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A rating of 20 percent is warranted where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A rating of 40 percent is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months. Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2013). The Veteran contends that his service-connected lumbar strain with intervertebral disc disease is worse than the 20 percent disability rating presently assigned. A VA clinical treatment note in August 2007, recorded complaints of back pain. On VA spine examination in June 2011, the Veteran reported that his service-connected lumbar spine condition limited his ability to walk more than one mile, which took him approximately one hour to accomplish. His lumbar spine condition was manifest by spasms, limited motion and stiffness. He denied fatigue, paresthesias, numbness, weakness, erectile dysfunction, or bowel or bladder problems. The Veteran described constant moderate back pain that radiated to the thigh. The pain was exacerbated by physical activity and at times became unbearable. He was able to function with medication. The Veteran denied a history of hospitalizations, as well as any episodes of incapacitation in the previous 12 months. On examination, posture and gait were within normal limits. Walking was steady and he did not require the use of assistive devices for ambulation. The examiner noted tenderness on palpation. Muscle spasms productive of abnormal gait were also noted. Spinal contour was preserved and there was no guarding on movement. Musculature was normal. X-rays revealed mild multilevel degenerative changes at all levels, most notable at L4-5. There was no ankylosis. Flexion was to 45 degrees, and increased to 50 degrees on repetitive motion. Extension was to 15 degrees, right lateral flexion was to 15 degrees, left lateral flexion was to 20 degrees, right rotation was to 20 degrees, and left rotation was to 20 degrees, with pain beginning at those degrees. Range of motion of the lumbar spine was not additionally limited by pain with repetitive movement, fatigue, weakness, lack of endurance or incoordination. Straight leg raise and Lasegue's sign were negative, bilaterally. There was no atrophy present in the limbs. On examination, there were no sensory deficits from L1-L5, S1. There was no lumbosacral motor weakness. Reflexes were 3+, bilaterally. The lower extremities showed no signs of pathologic reflexes. There were signs of lumbar intervertebral disc syndrome. The examiner found that the most likely peripheral nerve was the femoral nerve, affecting both sides of the body. The examiner diagnosed lumbar spine strain with intervertebral disc disease and degenerative arthritic changes. Complications included impaired walking, bending, jump, running, and picking up weights. Occupational impairment was described as stiffness and spasm to the lower back with limitation of motion. Initially the Board notes that throughout the appeal, there is no objective evidence of incapacitating episodes of at least 4 weeks duration and on VA examination in June 2011, the Veteran denied a history of incapacitating episodes in the previous 12 months period. As there is no evidence of physician prescribed bed rest having a total duration of at least four weeks during any 12 month period, the Veteran does not satisfy the criteria for an increased rating under Diagnostic Code 5243 for intervertebral disc syndrome. Therefore, the Board finds that the criteria for a higher rating based on incapacitating episodes have not been met. As the Veteran is not entitled to an increased rating based upon incapacitating episodes, it is necessary to determine whether he is entitled to a higher rating under the General Rating Formula. The ranges of motion of the Veteran's lumbar spine fall at most within the requirements for a 20 percent rating. In this regard, on VA examination in flexion was to 45 degrees. Range of motion of the lumbar spine was not additionally limited by pain with repetitive movement, fatigue, weakness, lack of endurance or incoordination, and in fact, flexion of the lumbar spine increased to 50 degrees on repetitive motion. As such, limitation of flexion of the lumbar spine to 30 degrees or less is not shown, even considering complaints of pain and functional impairment. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2013). Thus, a higher rating under the General Rating Formula is not warranted. The Board has determined that the Veteran is entitled to no more than a 20 percent disability rating under any of the spinal rating criteria applicable. Consideration has been given to the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45. In this regard, there is no evidence of flare-ups in symptoms shown to result in limitation of function of a severity to warrant any higher rating. DeLuca v. Brown, 8 Vet. App. 202 (1995). As for neurological manifestations, on VA examination the Veteran endorsed lumbar pain that radiated to the hips and thighs, and the examiner noted signs of lumbar intervertebral disc syndrome, most likely affecting the femoral peripheral nerve on both sides of the body. On examination, straight leg raise and Lasegue's sign were negative, bilaterally. There was no atrophy present in the limbs. There were no sensory deficits from L1-L5, S1. There was no lumbosacral motor weakness and the lower extremities showed no signs of pathologic reflexes. Other than the Veteran's complaints of pain, the medical evidence does not support a conclusion that the Veteran had any additional neurological symptoms amounting to any incomplete paralysis of any nerves related to his lumbar spine disability such that a separate disability rating is warranted under neurological diagnostic codes. See 38 C.F.R. § 4.124a. The General Rating Formula for Diseases and Injuries of the Spine specifically contemplates radiating pain in the spine rating criteria. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (evaluating spine disabilities "with or without symptoms such as pain (whether or not it radiates)". Significantly, the medical evidence in this case, to include the VA examination report, does not show a diagnosis or treatment for lumbar radiculopathy. Additionally, no other neurological findings were reported. The Board concludes that the preponderance of the evidence is against a finding of any additional neurological impairment associated with the Veteran's lumbar spine disability to warrant a separate rating. The Board has considered the Veteran's assertions of pain, functional limitations, and the need to take pain medication. However, the Veteran's disability level is adequately addressed by the evaluation assigned. The Board concludes that the medical findings are of greater probative value than the Veteran's allegations regarding the severity of his back disability. Therefore, the preponderance of the evidence is against the award of a disability rating in excess of 20 percent for lumbar spine strain with intervertebral disc syndrome. As a final matter, the Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria and the provisions of 38 C.F.R. § 4.40, 4.45, and 4.59 describe the Veteran's disability level and symptomatology, and the rating criteria provide for additional or more severe symptoms than currently shown by the evidence based on limited motion, incapacitating episodes and additional neurological impairment. Thus, the Board finds his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In sum, based on the evidence of record, entitlement to an evaluation in excess of 20 percent for lumbar spine strain with intervertebral disc syndrome is not warranted. The preponderance of the evidence is also against the assignment of any additional separate neurologic rating. As the preponderance of the evidence is otherwise against the Veteran's claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER An evaluation in excess of 20 percent for lumbar spine strain with intervertebral disc disease is denied. REMAND The Veteran contends that he is entitled to an initial rating higher than 30 percent for PTSD. Initially, a remand is necessary because there appears to be outstanding medical evidence that may be relevant to the claim for an initial rating higher than 30 percent for PTSD. Specifically, the record indicates that in July 2011, the Veteran reported receiving treatment for his service-connected PTSD, to include therapy for a year and nine months, from Dr. Hassan Jabbour. While the record contains an October 2009 medical evaluation report from Dr. Jabbour, the claims folder does not contain any treatment records and such records may support the Veteran's increased rating claim for the service-connected PTSD. Consequently, the Veteran's private treatment records from Dr. Hassan Jabbour should be obtained and associated with the claims file. In addition, the Veteran was last afforded a VA examination to evaluate his PTSD in May 2011. Because there may have been changes in the Veteran's condition, the Board finds that a new psychiatric examination is needed to fully and fairly evaluate the Veteran's claim for increased rating. Allday v. Brown, 7 Vet. App. 517 (1995). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide a fully completed release form for Dr. Hassan Jabbour, and for any other clinicians who have treated him for his PTSD. After securing the necessary and properly completed release(s), the RO/AMC should request the records identified and associate them with the claims file. The Veteran should be notified of any unsuccessful attempts to obtain the records requested. In addition, obtain all treatment records relevant to the Veteran's claim for a higher rating than 30 percent for PTSD from the VA Medical Center dated after January 2013. 2. After the above development is completed, schedule the Veteran for a VA psychiatric examination to determine the current severity of his PTSD. The examiner must review the claims folder in conjunction with the examination. The examination report should include a detailed account of all psychiatric pathology found to be present as well as a mental status examination. All tests or studies deemed necessary should be conducted, and the results should be reported in detail. The examiner should assign a Global Assessment of Functioning (GAF) score for the Veteran's service-connected PTSD and indicate the impact of his PTSD on occupational and social functioning. 3. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed. If the benefits sought on appeal remain denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The appellant 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). ______________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs