Citation Nr: 1335496 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-39 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an evaluation in excess of 20 percent for service-connected lumbosacral strain with degenerative disc disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from July 1979 to September 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Denver, Colorado, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which in pertinent part denied an increased rating for a service-connected low back disability. The decision also denied an increased evaluation for a left knee disability, but the Veteran declined to perfect an appeal with regard to that issue when filing his VA Form 9, Appeal to Board of Veterans' Appeals, in November 2007. In February 2011, the Board remanded the appellate issue for additional development; the requested actions have been taken, and the matter is returned to the Board for further appellate consideration. The Veteran testified at an August 2010 hearing held before the undersigned at the RO; a transcript of the hearing is of record. A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU) where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, while the Veteran discusses the impact of his back condition on employment, he continues to work and has not reported that he may be prevented from doing such. Inference of a claim for TDIU is therefore not appropriate. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure consideration of the totality of the evidence. FINDING OF FACT The service-connected lumbosacral strain with degenerative disc disease has at all times during the appellate period been manifested by forward flexion to greater than 30 degrees, without ankylosis or a showing of incapacitating episodes lasting more than 4 weeks in total. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for lumbosacral strain with degenerative disc disease are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. January 2007 and September 2009 letters 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). These letters 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). Finally, the Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning in the September 2009 letter. 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 December 2011 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran's service treatment records and private treatment records have been obtained. This includes records secured in compliance with the February 2011 remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran stated that he did not receive any VA treatment; electronic records demonstrate no VA treatment since that August 2010 statement. 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). A VA examination was conducted in January 2010; the examiner made all necessary findings to permit application of the rating criteria. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Although the Veteran argued that the findings on that examination represented a "good day" because he was on medication for knee disabilities, as is discussed below the results are consistent with the evidence as a whole. Further, the Veteran has no indicated, nor do records reflect, a worsening of his service-connected condition. At worst, he stated that after January 2010, the condition had returned to the state it had been on earlier examinations. The evidence of record is adequate for adjudication. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims 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); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis Private treatment records, covering the period from January 2007 to June 2011, contain few findings reflecting specific ranges of motion for the lumbar spine. They do reflect that in January 2007 the Veteran reported more frequent low back pain to Dr. ME. In February 2007 the Veteran reported recent episodes of severe low back pain to Dr. YCZ, the most recent several weeks prior. He reported spasms and that his back would "lock up." Range of motion was "intact," with flexion to approximately 90 degrees and extension to 30 degrees. Generalized tenderness of the paraspinal muscles was noted with palpation. There were no obvious motor or sensory deficits, but a March 2007 EMG showed some mild chronic radiculopathy associated with the left peroneal nerves. Dr. YCZ described this as nerve irritation. In February 2008, the Veteran stated he had not had any flare-ups since the prior visit. Physical therapy had been helpful. Dr. ME noted no low back complaints or clinical findings in July or August 2010 and Dr. CW's August 2010 regular check up account was normal. The Veteran did tell Dr. CW that his back pain had begun a year prior, and flared up two times a week. In June 2011 Dr. CW treated the Veteran for acute onset of pain after the Veteran was swinging a golf club and his back "went out." He had difficulty standing and walking at the examination. Spine curvature was normal. There was paraspinal tenderness and spasm on the left. Gait was normal, and no neurological symptoms were reported. At a February 2007 VA examination, the claims file was not available for review; however, as the focus of the examination was on the current status of the disability and not its history, there is no prejudice to the Veteran. The Veteran reported missing 15 days of work over the prior year due to back and knee pain. The Veteran reported pain and stiffness of the back since service. He experienced fatigue, and could not stand straight due to back pain. He was prevented from repeated bending or lifting more than 50 pounds due to pain. The pain was constant for the past 5 years, but flared up once a month over the prior year. He reported being prescribed bed rest for 1 week over the past year. Pain occasionally radiated to the left leg. On physical examination, gait was normal. The spine was flat, with no tenderness or spasm. Forward flexion was to 50 degrees. Left lateral bending was to 22 degrees, and to 26 degrees on the left. Extension was to 22 degrees, and rotation was to 20 degrees bilaterally. Pain was reported at the end of all movements. Repeated movement caused a loss of 15 additional degrees of flexion, or limitation to 35 degrees. There was no loss due to fatigue, weakness, or lack of endurance. Straight leg raising was normal, and no focal neurological problems were observed. Strain with limited motion was diagnosed. An x-ray showed mild disc disease. At a February 2008 VA examination for a knee disability, the Veteran reported that he had missed two weeks of work in the past year due to back pain. At the most recent January 2010 VA examination, the claims file was again not reviewed. The Veteran complained of midlumbar pain, weakness, stiffness, and fatigability with lack of endurance. Pain was continuous; at rest it was 3/10, and could flare to 10/10 with spasms. It radiated to the left thigh. He had missed 5 days of work in the past year. Although he had pain with more than 10 minutes of walking, sitting, or standing, the pain did not prevent him from continuing his activity. He reported four to 5 incapacitating episodes a year, but they lasted only five to ten minutes. He had not been ordered to take bed rest in the past year. He used Motrin for pain when having spasms. Physical examination revealed no scoliosis, spasm, or tenderness. Curvature of the spine was normal. Straight leg raising caused pain on the left. The Veteran was observed to move on and off the examination table without trouble. Gait was normal. Range of motion testing revealed flexion to 90 degrees, extension to 30 degrees, lateral flexion to 30 degrees bilaterally, right rotation to 30 degrees, and left rotation to 50 degrees. There was pain at the end of movement in all planes except right rotation. Repetitive movement did not cause additional functional impairment. Lumbar degenerative disc and joint disease with radiculopathy were diagnosed. The Veteran testified in August 2010 that he has constant low back pain at a 3 or 4/10 level. His main complaint was that four to five times a year, he endured flare-ups to a 9-10/10 level which left him "pretty much incapacitated for a week at a time." He described incapacitation as walking hunched over and resting in bed or on the couch instead of dong normal activities. He did not seek a doctor's care during flare-ups, and had not been prescribed bed rest. Day-to-day his limitation of motion was "not bad." He uses regular massage and over the counter Motrin for relief; he chose not to use prescription drugs. He had missed physical therapy appointments, apparently for his knees, due to back pain. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as the Veteran reported during his hearing, his overall disability picture has been fairly steady, and so no staged evaluations are warranted. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating 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 civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran is currently evaluated under the criteria of Code 5243, for intervertebral disc disease. Either of two sets of criteria may be applied. The disc disease may be rated based on the cumulative amount of time in which the condition was incapacitating over the prior 12 months, or based upon the degree of limitation of motion. 38 C.F.R. § 4.71a. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. Although the Veteran has reported being incapacitated on occasion, there is no record of any order or directive from a doctor requiring bed rest. Post service treatment records reflect no periods of bed rest or total incapacitation. The Veteran has competently and credibly reported episodes of increased symptoms; he stated at his hearing that four or five times a year he had experienced such episodes for a week to 10 days at a time. The Veteran contends that he knows a doctor would tell him to take bed rest, so he saw no reason to obtain a specific medical order. However, his belief is not competent evidence. Bed rest is a form of treatment, and the Veteran is not a medical professional. He lacks the knowledge and training to, in effect, prescribe himself treatment. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board additionally notes that the Veteran has been inconsistent in reporting whether bed rest had ever been prescribed. In 2007, he stated he had been told to take bed rest for a week, a fact not reflected in the ongoing private treatment records, but in all later instances he denied having been told to do so by doctors. His competent report of what a doctor may have told him is therefore not considered fully credible. Further, the definition of an incapacitating episode includes a requirement for active treatment by a doctor, which the Veteran has not reported. In the absence of any medical statement indicating that bed rest and regular treatment were required during those periods, the definition of "incapacitating episode" has not been met at any time during the appellate period. Evaluation under these criteria is therefore not appropriate. Finally, even if the Veteran's statements regarding incapacity were considered competent evidence, they lack credibility and consistency. Although the Veteran has steadily claimed four to five flare-ups of incapacitating symptoms a year since 2007, each lasting a week or a little more, he does not allege missing a commensurate number of work days. He has reported no more than 2 weeks or so of work missed in any year. No increased evaluation under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is warranted. Under the alternative General Rating Formula for Diseases and Injuries of the Spine, the disability is evaluated 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 higher 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a. In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a, Code 5237, Note 2. Further, all measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, Code 5237, Note 4. Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is in flexion or extension, and the ankylosis results in one 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; and/or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) is considered favorable ankylosis. 38 C.F.R. § 4.71a, Code 5239, Note 5. The greatest degree of limitation of flexion reflected in medical records is to 35 degrees of flexion, at the February 2007 VA examination, which took place during or fairly close in time to one of the Veteran's reported flare-ups. The measurement in fact reflects VA's attempts to induce a maximal limitation through repeated motion, and shows the extent of actual functional impairment of the back with use. The achieved level of impairment does not meet the criteria for assignment of an evaluation in excess of 20 percent under the General Rating Formula for Diseases and Injuries of the Spine at the time of greatest limitation, and is never shown to have done so. Even during an attack, as described in August 2010 private treatment with Dr. ME, the sever spasm and pain is not shown to cause limitation warranting assignment of a higher Schedular evaluation. The Board has considered whether a separate, compensable evaluation is warranted for neurological symptoms associated with the low back. Private and VA doctors have all identified a degree of mild radiculopathy radiating into the left leg, and relate such to service-connected disc disease. However, the affected nerve(s), as identified at the March 2007 EMG, are the peroneals. The Schedule provides that 0 percent rating is assigned for mild impairment of the superficial or deep peroneal nerves. 38 C.F.R. § 4.124a, Codes 8522, 8523. The evidence of record, to include the Veteran's descriptions of his radiating pain, do not merit a compensable evaluation for this service-connected symptom of the Veteran's lumbar disc disease. Consideration has also been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Schedular criteria are here adequate. The back criteria fully account for the Veteran's complaints of pain and associated limited function, even on flare-up, and permit increased evaluation for impairments in excess of those currently shown. Further, there has been minimal impact on occupational functioning. No extraschedular evaluation is warranted. In sum, the weight of the competent and credible evidence of record is against the claim; there is no doubt to be resolved. An evaluation in excess of 20 percent for service-connected lumbosacral strain with degenerative disc disease is not warranted at any time during the appellate period. ORDER An evaluation in excess of 20 percent for service-connected lumbosacral strain with degenerative disc disease is denied. ______________________________________________ E. I. VELEZ Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs