Citation Nr: 1335807 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 12-14 242 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for service-connected degenerative disc disease of the lumbar spine (lumbar spine disability). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1999 to November 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which granted service connection for degenerative disc disease of the lumbar spine and assigned a 10 percent disability rating. In addition to a paper claims file, there is a Virtual VA electronic file. The Board has reviewed both files prior to reaching this decision. FINDING OF FACT The Veteran's lumbar spine disability is manifested by forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; there is no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; incapacitating episodes, favorable or unfavorable ankylosis, and neurological abnormalities are not present. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for service-connected degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5235- 5243 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. The 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) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). With regard to an initial rating claim, such a claim is generally considered to be a "downstream" issue from the original grant of benefits. VA's General Counsel issued an advisory opinion holding that separate notice of VA's duty to assist the Veteran and of his concomitant responsibilities in the development of his claim involving such downstream issues is not required when the Veteran was provided adequate VCAA notice following receipt of the original claim. See VAOPGCPREC 8-2003. Further, where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. See Goodwin v. Peake, 22 Vet. App. 128 (2008), citing Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). In this case, the Veteran has not alleged that he has suffered any prejudice as to the lack of pre-adjudicatory notice specific to the initial rating claim. Notably, a notice of disagreement as to an initial rating does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). See 38 C.F.R. § 3.159(b)(3) (2013). Rather, the claimant's appeal of an initial rating triggers VA's duty to develop that claim, as set forth at 38 U.S.C.A. §§ 5104, 7105; 38 C.F.R. § 3.103. Under these, VA is required to advise the claimant of what evidence is necessary to obtain the maximum benefit allowed by the evidence and the law. This is accomplished in a statement of the case (hereinafter: SOC). In this case, the Veteran was provided with VCAA notice in January 2010 prior to the initial rating decision in April 2010. The letter informed the Veteran of the evidence necessary to establish service connection, of how VA would assist him in developing his claim, and his and VA's obligations in providing such evidence for consideration. The letter also informed him of how to substantiate disability ratings generally and how effective dates are determined. The May 2012 SOC provided the Veteran with the relevant rating criteria for disabilities of the spine, as listed at various diagnostic codes. The claimant was informed of the evidence needed to achieve a higher schedular rating. Thus, VA's duties under 38 U.S.C.A. §§ 5104 and 7105 have been satisfied. VA has also fulfilled its duty to assist the Veteran by obtaining identified and available evidence needed to substantiate the claim, including VA treatment records, private treatment records, and by affording the Veteran two VA examinations. Concerning this, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The March 2010 and April 2012 VA examinations are adequate as they were based on a physical examination of the Veteran and provide the medical information needed to address the rating criteria relevant to the issue on appeal. There is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) . The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Entitlement to a higher initial rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. Where a Veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, as is the case here, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . " Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the 'present level' of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the rating claim has been pending). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (hereinafter: General Rating Formula) for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (hereinafter: IVDS Formula). With respect to the thorocolumbar spine, under the General Rating Formula, 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 10 percent rating is warranted when there is 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 rating is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine 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 rating is contemplated when forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. Under the IVDS Formula, ratings higher than 10 percent require incapacitating episodes having a total duration of at least 2 weeks or more during the past 12 months. 38 C.F.R. § 4.71a, DC 5243, Note (1). An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. 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. 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. 38 C.F.R. § 4.71a , General Rating Formula, Note (2); see also 38 C.F.R. § 4.71a, Plate V (2011). Unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a , General Rating Formula, Note (5) (2013). Associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a , General Rating Formula, Note (1) (2013). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. See 38 C.F.R. § 4.45. Determination of whether the application of sections 4.40 and 4.45 entitles the Veteran to an increased rating for his lumbar spine disability requires factual findings as to the extent to which the Veteran's pain and weakness cause additional disability beyond that reflected in the measured limitation of motion. DeLuca 8 Vet. App. 202. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; see also Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In rendering a decision on appeal, the Board must analyze the competency, credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). The Veteran genuinely believes that the severity of his disability merits a higher rating. He is competent to describe the symptoms that he experiences, such as pain, weakness and fatigue, because such descriptions require only personal knowledge as it comes to him through his senses. See Layno, 6 Vet. App. at 469 (1994). However, the Veteran is not competent to identify the specific level of disability according to the relevant diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's lumbar spine disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. The Board will now consider the medical and lay evidence relevant to the claim. In March 2010, the Veteran underwent a VA examination. Range of motion testing demonstrated forward flexion to 90 degrees, forward extension to 20 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees and left lateral rotation to 30 degrees. The Veteran noted flare-ups every two to three weeks lasting one to two days that were alleviated by Ibuprofen and stretching. He described the type of pain during these episodes as "stabbing." His gait was normal and no spinal ankylosis was found. Muscles showed guarding and tenderness on both the left and right sides, although the muscle tone was found normal and without atrophy. The examiner noted a history of fatigue, decreased motion, stiffness, weakness, spasms and pain. The examiner related that the Veteran treated his low back pain with Ibuprofen and heat packs with "fair response." In his October 2010 Notice of Disagreement, the Veteran claimed his pain had increased since the March 2010 examination. He stated he was more limited in his daily activities. He specifically reported difficulty playing with his children on the floor, picking them up and giving them baths. He also stated he struggled when getting up from lying, kneeling or sitting. Additionally, he worked at a manufacturing plant and the twisting, lifting, bending, stooping, pushing and pulling required of him as an employee caused daily pain and he was looking for another job. Private treatment records dated in 2011 indicate physical therapy and a review of an April 2011 x-ray demonstrated facet impingement at the L5-S1 level with worse impingement on the right side. In addition, the Veteran reported stabbing pains in his back when running, jumping or doing any kind of impact exercise. In April 2012, the Veteran underwent another VA examination. The Veteran reported that he changed employment to a job where he sits most of the day, but the change did not decrease his back pain. Range of motion testing demonstrated forward flexion to 80 degrees, forward extension to 20 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees and left lateral rotation to 30 degrees. These measurements were the same after repetitive use testing and no additional limitation was shown after three repetitions. The examiner noted objective evidence of pain only upon forward extension, but did note less movement than normal and excess fatigability. The examiner found no radiculopathy, no neurological abnormalities and no spinal anklyosis. The examiner noted localized guarding that did not result in an abnormal gait. In his May 2012 Form 9, the Veteran stated that during the prior six months he had to increase the amount of pain medication he is taking and take it more often. He reported that pain medication only dulls the pain and that "[m]y pain starts out at 4 or 5 in the morning and by the end of the day, I would say it is at a 8." He related that the pain limits him in his job because even with an ergonomic chair, he has to get up several times a day. He explained that during the April 2012 VA examination, he was able to complete the range of motion testing with a "considerable amount of pain except one of the bends where I had to catch myself on the wall." He contends that he is not being reasonably compensated for his pain. In order to receive a 20 percent rating based upon limitation of motion of the spine, it would have to be shown that the Veteran has forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or a combined range of motion not greater than 120 degrees. The medical evidence of record does not demonstrate such limitation. In addition, although the evidence demonstrates muscle spasm and guarding, the VA examiner noted that these were not severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Thus, a rating in excess of 10 percent based on the rating criteria is not warranted. In addition, consideration has been given as to whether a higher disability evaluation could be assigned under DC 5243, intervertebral disc syndrome. In this regard, the Veteran has not complained of incapacitating pain due to his disability, and the records do not reflect any such episodes of incapacitation. The VA examination reports reflect that there have been no incapacitating episodes requiring physician prescribed bed rest. Therefore, a higher rating based upon incapacitating episodes under DC 5243 is not appropriate. See 38 C.F.R. § 4.71a, DC 5243 (2013). Consideration has also been given to whether separate evaluations are warranted for neurologic manifestations of the Veteran's service-connected disability. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The record shows no bowel or bladder dysfunction or other neurological impairment during the relevant time period as a result of the Veteran's back disability. Accordingly, the evidence does not support a separate rating for neurologic manifestations. Consideration has been given to functional impairment due to the Veteran's service-connected disability. The Board acknowledges the subjective complaints of pain and weakness made throughout the course of the Veteran's claim, as well as the objective evidence of pain on movement and excess fatigability during range of motion testing at the time of the April 2012 examination. The Board acknowledges these findings, as well as the Veteran's reported difficulties with activities of daily living and at his prior and current jobs. The Board notes, however, that pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Even taking into account the objective findings of pain and fatigue, the Veteran was still able to forward flex his thorocolumbar spine to at worst 80 degrees, which is normal for VA purposes and only 5 degrees less than the maximum allowable flexion of 85 degrees required to support a compensable rating under the General Rating Formula. Moreover, the Veteran's combined range of motion at worst was 220 degrees, which is 100 degrees more than the maximum flexion of 120 degrees required to support a 20 percent rating. The Board acknowledges the Veteran's subjective complaints and finds his assertions both competent and credible. However, upon careful consideration of the evidence, the Board finds that the Veteran's disability picture most closely approximates the criteria for a 10 percent rating and that a rating in excess of 10 percent based on functional loss is not warranted. 38 C.F.R. §§ 4.40, 4.45 (2013); DeLuca, 8 Vet. App. at 204 -06. Upon review of the 2010 and 2012 VA examination reports, the level of impairment in the Veteran's back has been relatively stable throughout the appeals period. Therefore, the application of staged ratings is inapplicable. See Hart v. Mansfield, 21 Vet. App. 505 (2007). III. Extraschedular Considerations The Board finds that the record does not reflect that the Veteran's lumbar spine disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). 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 Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as 'governing norms' (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show that the Veteran has such an exceptional disability picture that the available schedular rating is inadequate. As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's disability is not productive of such manifestations. As such, it cannot be said that the available schedular evaluation for the disability is inadequate and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Finally, a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been considered. The Board notes that while the Veteran has complained that his service-connected back disorder makes it difficult for him to sit at his desk chair for long periods at a time, the Veteran is able to sustain and follow substantially gainful employment and there is no evidence that the Veteran has missed any work due to his back condition. Therefore, the Board finds that the issue of entitlement to TDIU has not been reasonably raised by the record. Based on the foregoing and after a consideration of the totality of the evidence, the Board resolves the benefit of the doubt in favor of the Veteran and finds that the criteria for an increased disability rating of 20 percent, but no higher, for a lumbar spine disability have been met. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial evaluation in excess of 10 percent for service-connected degenerative disc disease of the lumbar spine is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs