Citation Nr: 1336086 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 11-27 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for a low back disability. REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD D. Havivi, Associate Counsel INTRODUCTION The Veteran had active service from July 1987 to June 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. Jurisdiction of the claims file rests with the RO in Lincoln, Nebraska. This case was previously adjudicated by the Board in April 2008 and the Court of Appeals for Veterans Claims (Court) in August 2009. After the Board denied service connection in its April 2008 decision, the Court remanded for a VA examination. After the remand instructions were completed, the RO's May 2011 rating decision awarded service connection and rated the Veteran's low back disability at 10 percent. A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System revealed no additional records which are pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran has a service connected low back disability. Characterized as a lumbar spine strain. 2. The Veteran's low back disability is not manifested by forward flexion of the thoracolumbar spine of less than 60 degrees, or combined range of motion of less 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. There is no neurological impairment shown. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for a low back disability have not been met. 38 U.S.C.A. §§ 1155, 5100, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1-4.7, 4.10, 4.40, 4.45, 4.46, 4.59, 4.71, 4.71a, Diagnostic Code 5237 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. As this is an appeal arising from the initial grant of service connection, the notice that was provided in March 2004 before service connection was granted was legally sufficient and VA's duty to notify the Veteran in this case has been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006). VA also has a duty to assist the Veteran in the development of the claim, which 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. Here, the Board finds that all necessary development has been accomplished, as the record includes the Veteran's service treatment records, VA outpatient treatment records, private medical records, lay statements and the reports of the VA examinations. Letters and the supplemental statement of the case revealed which records were received and which could not be received. Veteran and his attorney were offered the chance to submit additional release forms or obtain additional records, and no such action was taken. Therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Additionally, the May 2010 VA examination obtained in this case is adequate, as it is predicated on a review of the Veteran's medical history, contains a description of the history of the disability at issue, documents and considers the Veteran's complaints and symptoms, and fully provides medical evidence that is relevant to the governing rating criteria. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). 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). Earlier exams for the rating period are also on file, and sufficient to rate the disorder. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of his claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Merits of the Claim The Veteran seeks an increased initial rating for his service connected low back disability. The RO granted service connection for the disability in a May 2011 rating decision. At that time, a 10 percent evaluation was assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5237 for a lumbar strain. The effective date was December 2003, the date of the claim. In the instant case, the criteria for an initial evaluation in excess of 10 percent for the Veteran's low back disability have not been met. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7 and 4.21. If two disability evaluations are potentially applicable, the higher evaluation 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then-current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to receive a staged rating. That is, it is possible to be awarded separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). The Court has held that the Board must consider whether a higher evaluation of a service connected disability 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 and 4.45. See generally, DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court noted that Mitchell v. Shinseki, 25 Vet. App. 32 (2011) distinguished DeLuca, saying that pain alone through a joint's range of motion does not constitute functional loss. The Court has clearly indicated that painful motion does not equate to limited motion. Mitchell, 25 Vet. App. at 41. Under the General Rating Formula for Rating Diseases and Injuries of the Spine, 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, the following ratings will apply. An evaluation of 10 percent is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if 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. Id. A 40 percent evaluation is warranted if the forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. Id. There are several notes set out after the diagnostic criteria, with the following applying to the instant case: For purposes of VA compensation, 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 thoracolumbar spine is to 240 degrees. Also, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Each range of motion should be rounded to the nearest 5 degrees. Id. Also, Note 1 after the General Rating Formula states that one should also evaluate any associated objective neurological abnormalities, including but not limited to bladder impairment, separately, under the appropriate diagnostic code. Id. The criteria for a rating in excess of 10 percent for a low back disability have not been met. At the May 2010 VA examination, the Veteran's lumbar spine range of motion was normal, with the exception of extension, which was 25 degrees out of 30. The Veteran experienced tenderness at 20 to 30 degrees for extension, at 75 to 90 degrees for forward flexion and in the final 5 degrees (25 to 30) for left and right lateral bending and rotation. The Veteran's combined range of motion of the thoracolumbar spine was 235 degrees. In the examination, the Veteran stated that he experienced flare-ups every two weeks that can last days, up to two weeks. The flare-ups can be mild to moderately severe and result in increased pain with some decreased range of motion. The Veteran also stated he had not missed work in the past year for this condition, nor did it cause complete incapacity at any point. There were no functional limitations to standing or walking because of his disability, nor was there kyphosis, reverse lordosis or scoliosis. The examiner noted spasm and tenderness in the left thoracic sacrospinalis along with pain is both the left and right. However, the Veteran's gait was normal. The examiner also noted mild increase in pain without additional weakness, excess fatigability, incoordination, lack of endurance, or additional loss in range of motion with repetitive use. The examiner could not say how a flare-up might cause additional limitation due to repetitive use. There were no signs of degenerative changes in the imaging study. These findings are very similar to the findings reported on an earlier 2004 VA examination. Motion was essentially normal and significant functional limitation was not found. Nothing in these exams supports an evaluation in excess of 10 percent at any time during the appeal period. The VA also received evidence from the Chiropractic Wellness Center. The records did not record specific degree measurements, with the exception of lower back combined range of motion. From June 2010 to November 2011, only one of these fifteen readings read below 120 degrees. The outlier was measured at 115 degrees. The rest ranged from 155 to 200 degrees. Because the forward flexion is greater than 60 degrees, the combined range of motion is greater than 120 degrees (with one exception) and there is no muscle spasm or guarding severe enough to result in abnormal gait or abnormal spine contour such as scoliosis, reversed lordosis or abnormal kyphosis, an initial rating in excess of 10 percent cannot me assigned. There are no neurological abnormalities that could warrant a rating under a separate diagnostic code. The examiner noted bowel or bladder impairment and no motor impairment. The Veteran's reflexes were normal and he reported no numbness. Therefore, there is an absence of any objective neurological abnormalities that should be considered in assessing the Veteran's disability rating. The Board must also consider whether a higher rating is warranted due to pain, weakness or fatigability. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran did not complain of any fatigue or weakness at any point during the ROM measurements. However, he does state that during flare-ups he experienced some decreased range of motion. However, he also describes his condition as stable and consistent. While the Veteran did experience tenderness at certain points in his range of motion during the VA examination, the ROM did not decrease due to this pain. Therefore, the pain did not cause functional loss and is not compensable beyond the actual limit of the ROM. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Staged ratings are inapplicable in the instant case because there is no evidence of change in the Veteran's disability. Fenderson v. West, 12 Vet. App. 119 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2011); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Here, the Veteran has not presented evidence to support an increased initial rating for his low back disability. Therefore, the evidence is not in equipoise and the Veteran cannot be given the benefit of the doubt. Because the evidence preponderates against the claim, entitlement to an increased initial rating for a low back disability is denied. The Board has also considered whether the Veteran's low back disability warrants referral for extra-schedular consideration. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination concerning whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, the Veteran's symptoms are expressly contemplated by the rating schedule. As outlined above, the Veteran has limited range of motion of extension of the thoracolumbar spine, muscle spasm, stiffness, tenderness and pain with motion. Such symptoms are contemplated by the schedular criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5237. The regulations and case law expressly consider each of these symptoms. In other words, Diagnostic Code 5237 adequately contemplates all of the Veteran's symptoms. Therefore, the first step of Thun has not been met, and referral for the assignment of an extraschedular disability rating is not warranted. The criteria for an initial rating in excess of 10 percent for a low back disability have not been met. ORDER Entitlement to an initial rating in excess of 10 percent for a low back disability is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs