Citation Nr: 1336102	
Decision Date: 11/06/13    Archive Date: 11/13/13

DOCKET NO.  08-05 136	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial evaluation in excess of 10 percent prior to January 12, 2012 and in excess of 20 percent thereafter for lumbar strain.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel



INTRODUCTION

The Veteran served on active duty from May 2001 to February 2006.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In December 2011, the Board remanded this case for further evidentiary development.  The case has been returned to the Board for disposition.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal except as to the representative's appeal brief in this matter.


FINDINGS OF FACT

1.  Prior to January 12, 2012, lumbar strain disability was manifested by forward flexion to 90 degrees at worst and a combined range of motion significantly more than 120 degrees.

2.  From January 12, 2012, lumbar strain disability was manifested by forward flexion at worst of 55 degrees without ankylosis.


CONCLUSION OF LAW

The criteria for an initial evaluation in excess of 10 percent prior to January 12, 2012 and in excess of 20 percent thereafter for lumbar strain are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5237 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.

They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

VA satisfied its duty to notify.  VA provided the Veteran with VCAA letters dated in July 2006 and September 2007.  Although complete VCAA notice was not provided prior to the rating decision from which this appeal arises, the Board notes that following provision of all required notice and completion of all indicated development of the record, the originating agency readjudicated the claim in July 2013, affording due process of law.  See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by readjudication of the claim).  There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time.

VA also satisfied its duty to assist the Veteran.  All relevant medical records have been obtained and associated with the claims file.  VA afforded the Veteran VA medical examinations in response to the claim herein decided.  The Board previously reviewed the record, determined that the VA examination of record was inadequate, and remanded the case for the purpose of affording the Veteran a new VA examination.  The Veteran presented for VA examination in January 2012.  The Board has reviewed the examination report and finds substantial compliance with the requirements articulated in the Board's prior remand decision.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  This examination report, along with the remainder of the evidence of record, contains sufficient information to rate the Veteran's back disability under the appropriate diagnostic criteria.  

Accordingly, the Board may address the merits of the claim.

II. Evaluation of Lumbar Strain Disability

The Veteran seeks an initial evaluation in excess of 10 percent prior to January 12, 2012 and in excess of 20 percent thereafter for lumbar spine disability.

The Veteran filed an original claim for VA compensation in June 2006.  In October 2006, the RO granted the claim for lumbar strain and assigned an initial noncompensable evaluation effective the day after service discharge, February 23, 2006.  Subsequently, the RO assigned a 10 percent evaluation effective from February 23, 2006 and a 20 percent evaluation effective from January 12, 2012.

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 (2009); 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.

Legal Criteria

Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4 (2013).  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 their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013).

If two 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.

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14 (2013).  38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged."  Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001).  A disability may require re-evaluation in accordance with changes in a veteran's condition.  It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history.  38 C.F.R. § 4.1.

In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).

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 may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45.

The intent of the Rating Schedule is 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.

As of September 26, 2003, all diseases and injuries of the spine other than intervertebral disc syndrome are to be evaluated under the general rating formula.  The Veteran's low back disability is evaluated under Diagnostic Code 5237 pertaining to lumbar strain.  38 C.F.R. § 4.71a, Diagnostic Code 5237.

Under the General Rating Formula, a 10 percent evaluation is for application with forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the 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.  38 C.F.R. § 4.71a (2013).

A 20 percent evaluation is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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.  Id.

A 40 percent evaluation is provided for unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.  Id.

A 50 percent evaluation is provided for unfavorable ankylosis of the entire thoracolumbar spine.  Id.

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, entire thoracolumbar spine, or entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: 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; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  68 Fed. Reg. 51,443, Note (5) (Aug. 27, 2003).

Normal ranges of motion of the thoracolumbar spine include:  Flexion from 0 to 90 degrees; extension from 0 to 30 degrees; lateral flexion bilaterally from 0 to 30 degrees; and rotation bilaterally from 0 to 30 degrees.  38 C.F.R. § 4.71a, Plate V (2013).

Associated objective neurological abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under an appropriate Diagnostic Code.  68 Fed. Reg. 51,443, Note (1) (Aug. 27, 2003).

The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006).  It is noted that 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 Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).

Analysis

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an initial evaluation in excess of 10 percent prior to January 12, 2012 and in excess of 20 percent thereafter for lumbar strain.  Neither the lay nor the medical evidence of record more nearly reflects the criteria for the next higher evaluation.  38 C.F.R. § 4.114, Diagnostic Code 5237.

Report of VA examination dated in August 2006 reflects complaints of low back pain.  The Veteran denied use of medication, but reported flare-up of pain precipitated by lying down in bed or sitting in a chair for more than 2 hours, relieved by moving around slowly.  Flare-ups occurred twice a day and lasting up to one hour.  The Veteran reported that he could walk for 1 mile without pain.  Post service, he denied lost time from work due to back symptoms.  Range of motion testing showed 90 degrees of forward flexion, 30 degrees of extension, and 30 degrees of bilateral flexion and bilateral rotation.  After repetition of use, there was no additional loss of motion, increased pain, fatigability, incoordination, weakness, or loss of endurance.  There were no muscle spasms, but there was slight tenderness over the left sacroiliac notch with palpation.  No neurological defects were found.  X-ray showed marked straightening of the normal lumbar lordosis suggesting muscle spasm; the impression was myospasm.

Report of VA examination dated in April 2008 reflects complaints of low back pain with left buttock sciatic symptoms.  He denied limiting his activities.  The Veteran reported that his symptoms were intermittent with remissions, described as moderate, occurring daily and lasting for hours.  He treated symptoms with Aleve as needed, with poor response.  He denied any current medical treatment.  MRI dated in 2004 reflects degenerative changes of the lumbar spine.  The Veteran indicated that his flare-ups were severe, occurred every 2 to 3 weeks and lasted for hours.  He stated that he could walk more than 1/4 mile but less than 1 mile without pain.  Objectively, the Veteran had normal gait and posture.  There was no abnormal curvature of the spine to include lumbar lordosis, lumbar flattening, and scoliosis.  Clinical findings were negative for spasm, atrophy, guarding, pain with motion, tenderness, and weakness.  No defects were found on sensory and motor evaluation.  Range of motion testing showed 90 degrees of forward flexion; 5 degrees of extension; 30 degrees of bilateral flexion; and 30 degrees of bilateral rotation.  There was evidence of pain on motion and following repetitive motion, but no additional limitation of motion following 3 repetitions of motion.  X-ray showed normal lumbar spine.  The Veteran reported that he lost 2 weeks from work in the past 12 months.  It was noted that the Veteran had low back pain with prolonged sitting and must move around to avoid low back pain.

Report of VA examination dated in January 2012 reflects a diagnosis for lumbar strain.  The Veteran complained of worsening back pain, decreased range of motion, and more frequent episodes of tingling of the lower extremities.  The Veteran reported flare-ups with walking in excess of 4 blocks, sitting in excess of 20 minutes, and with stumbling or tripping, which lasts 2 hours and occurs once a week-restricting his physical activities.  Range of motion testing showed 55 degrees of forward flexion; 5 degrees of extension; 20 degrees of bilateral flexion; and 30 degrees of bilateral rotation.  Pain began at the end point of each plane of motion.  There was no additional loss of motion following 3 repetitions of motion.  The examiner noted that there was functional loss and impairment due to less movement than normal and pain on movement.  There was no indication of weakened movement, excess fatigability, incoordination, swelling, deformity, atrophy of disuse, and disturbance of locomotion.  There was localized tenderness or pain to palpation and guarding that did not result in abnormal gait or spinal contour.  Muscle strength was normal; there was no muscle atrophy.  Reflexes were hypoactive (1+).  Sensory function was normal.  There was no radicular pain or any other signs or symptoms due to radiculopathy.  There were no neurological abnormalities related to the thoracolumbar spine.  Clinical findings were positive for intervertebral disc syndrome of the lumbar spine, but no incapacitating episodes over the last 12 months.  The examiner noted that there was functional impact of this disability on the Veteran's employment-noting that the Veteran did "office work" with computers, phones, and paper work, and he sits for 7.5 hours daily with discomfort that requires standing or walking every 15/20 minutes.

A March 2012 addendum to the January 2012 VA examination report reflects that the Veteran had no additional limitation of motion following repetitive motion.  It was noted that imaging study showed straightening of normal lumbar lordosis "[that] may be related to muscle spasm versus patient positioning." 

The Board finds that, prior to January 12, 2012, neither the lay nor the medical evidence of record more nearly reflects forward flexion greater than 30 degrees but not greater than 60 degrees; or, a 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.  Rather, the evidence reflects flexion to 90 degrees and a combined range of motion significantly more than 120 degrees.  There were flare-ups of low back pain precipitated by prolonged sitting or lying down in bed, relieved by moving around and over-the-counter pain medication taken as needed.  The Veteran did not require medical treatment or therapy in the period of time prior to January 12, 2012 and maintained employment with 2 weeks lost due to low back symptoms in the 12 month period prior to April 2008.  The lay and medical evidence more nearly approximate the criteria for a 10 percent evaluation, and no more, prior to January 12, 2012.

The Board finds that, from January 12, 2012, neither the lay nor the medical evidence of record more nearly reflects forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.  Rather, the evidence reflects flexion at worst is 55 degrees and significantly retained range of motion with no ankylosis.  Again, there were flare-ups of low back pain precipitated by prolonged sitting, relieved by moving around.  The lay and medical evidence more nearly approximate the criteria for a 20 percent evaluation, and no more, from January 12, 2012.

The Board accepts that the Veteran is competent to report that his disability is worse.  Layno, supra.  The Board further accepts that the Veteran has functional impairment, pain, and pain on motion.  See DeLuca, supra.  Furthermore, the Board finds the Veteran's own reports of symptomatology to be credible.  However, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a higher evaluation.  The more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned evaluations-10 percent prior to January 12, 2012 and 20 percent thereafter-are appropriate for the Veteran's low back disability.  In order to warrant a higher evaluation, there must be the functional equivalent of flexion not greater than 60 degrees (or combined range of thoracolumbar motion not greater than 120 degrees; or abnormal spinal contour) prior to January 2012 and ankylosis from January 2012.  According to the United States Court of Appeals for Veterans Claims (Court), pain alone does not constitute functional loss under VA regulations.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

The Board has considered whether a higher disability evaluation is available under any other potentially applicable provision of the rating schedule.  However, a higher evaluation is not warranted based on any other provision of the rating schedule for either the period of time prior to or after January 12, 2012.  Although the record shows that the Veteran has intervertebral disc syndrome, the record does not reflect that the Veteran has had any incapacitating episodes related to this disability as is required for a rating under this criteria.  It is noted that 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.  38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1).  Additionally, the record shows no separately ratable neurological symptoms.  While the Veteran reported sciatic-type symptoms, all VA examinations show normal neurological evaluation of the lower extremities.

Accordingly, the weight of evidence, lay and medical, is against the claim for increase.  Also, there is no basis to further stage the rating for the low back as the evidence shows no distinct period where the disability exhibited symptoms that would warrant a different rating for either period.  See Fenderson v. West, 12 Vet. App. 119, 126 (2001).

Lastly, the Board has considered whether the Veteran's claim for increase for low back disability should be referred for consideration of an extraschedular evaluation, and has concluded that no such referral is warranted.  As explained above, the Veteran's symptomatology is fully contemplated by the pertinent diagnostic criteria.  There is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards.  See, e.g., Thun v. Peake, 22 Vet. App. 111 (2008).

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ORDER

An initial evaluation in excess of 10 percent prior to January 12, 2012 and in excess of 20 percent thereafter for lumbar strain is denied.




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs