Citation Nr: 1336130	
Decision Date: 11/06/13    Archive Date: 11/13/13

DOCKET NO.  03-21 484	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to a disability rating in excess of 20 percent for lumbosacral sprain with radiculopathy and degenerative changes.

2.  Entitlement to a total disability rating based on individual unemployability, due to service-connected disabilities (TDIU) from August 28, 2003 to February 4, 2004.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

F. Yankey, Counsel


INTRODUCTION

The Veteran served on active duty from December 1990 to July 1991.  This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

The Veteran testified before the undersigned at a July 2009 Travel Board hearing.  The hearing transcript is of record.  

In September 2009, July 2010 and April 2012, the Board remanded the case for further development by the originating agency.  The case has been returned to the Board for further appellate action.


FINDINGS OF FACT

1.  During the period of this claim, the Veteran's low back disability has not been productive of a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician; nor has there been any evidence of favorable or unfavorable ankylosis.

2.  Prior to September 26, 2003, the Veteran's low back disability was manifested by limitation of motion, which more nearly approximated moderate than severe; there was no severe lumbosacral strain with listing of the whole spine to the opposite side; positive Goldthwaite's sign, marked limitation of forward bending in a standing position, a loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion.
3.  For the period beginning September 26, 2003, the Veteran's low back disability has been manifested by limitation of forward flexion of the lumbar spine to 30 degrees, with consideration of functional factors and subjective symptoms of pain; there is no evidence of ankylosis or incapacitating episodes of intervertebral disc syndrome.

4.  The Veteran was likely unable to secure and follow substantially gainful employment as a result of his service-connected disabilities from August 28, 2003 to February 4, 2004.


CONCLUSIONS OF LAW

1.  Prior to September 26, 2003, the criteria for a rating in excess of 20 percent for the lumbosacral sprain with radiculopathy and degenerative changes have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5292, 5293, 5295 (2003); Diagnostic Codes 5235-5243 (2012).

2.  For the period beginning September 26, 2003, the criteria for a 40 percent disability rating, but no more, for the orthopedic manifestations of the lumbosacral sprain with radiculopathy and degenerative changes have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5292, 5293, 5295 (2003); Diagnostic Codes 5235-5243 (2012).

3.  The criteria for TDIU have been met from August 28, 2003 to February 4, 2004.  38 C.F.R. §§ 3.340, 4.16 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

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, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran 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, 3.326(a) (2012).

The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim.  Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).  In view of the Board's favorable decision, further assistance is unnecessary to aid the Veteran in substantiating his claim for entitlement to a TDIU from August 28, 2003 to February 4, 2004.

Under the VCAA, 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.  Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The Court had held that at a minimum, adequate VCAA notice in an increased rating claim required that VA notify the claimant that, to substantiate such a claim: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation.  Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008).

The Federal Circuit has overturned the requirement that VA provide notice that the claim could be substantiated by evidence of a disability's impact on daily life and that VA provide notice with regard to potential diagnostic code criteria (element 2).  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

The record reflects that in December 2001, November 2002, May 2004, March 2006, August 2008, September 2008 and October 2009, the Veteran was provided with the required notice under § 5103.  The Board notes that the letters expressly notified the Veteran that he had one year to submit the requested information and/or evidence, in compliance with 38 U.S.C.A. § 5103(b) (evidence must be received by the Secretary within one year from the date notice is sent).  Also, the Veteran was given the specific notice required by Dingess v. Nicholson, 19 Vet. App. 473 (2006) in the March 2006, September 2008 and October 2009 letters.  The August 2008 letter provided the information required by Vazquez-Flores.

VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, VA's notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.

There was a timing deficiency in that the March 2006 and August 2008 letters were sent after the initial adjudication of the claims.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The timing deficiency was cured by readjudication of the claims in rating decisions and supplemental statements of the case issued in January 2008, August 2008, January 2009, February 2009, March 2009, March 2010, November 2011, and January 2013.  Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).

Finally, the Board notes that VA has obtained records of treatment reported by the Veteran, including service treatment records, VA and private treatment records, and the Veteran has been afforded appropriate VA examinations.  Neither the Veteran nor his representative has identified any additional evidence that could be obtained to substantiate the claims, and the Board is also unaware of any such evidence.

The Board remanded the claims in September 2009, July 2010 and April 2012, to afford the Veteran a proper VA examination of his lumbar spine.  A VA examination was conducted in May 2012, and contained the requested information, necessary to adequately rate the Veteran's low back disability.  The remand instructions were thereby complied with.  Stegall v. West, 11 Vet. App. 268 (1998).

In sum, the Board concludes that any errors in the notice and the development of the claims by the originating agency were not prejudicial to the Veteran.

Legal Criteria

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012).  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 (2012).

Each disability must be considered from the point of view of the Veteran working or seeking work.  38 C.F.R. § 4.2.  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 required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21 (2012).

The Veteran's entire history is to be considered when making a disability determination.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  This includes consideration of the evidence pertaining to the level of disability from the time period one year before the claim was filed.  38 U.S.C. § 5110.  

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment.  The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain.  Such inquiry is not to be limited to muscles or nerves.  These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012).

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14 (2012).  However, § 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).
As a preliminary matter, the Board notes that during the pendency of this claim, the criteria for rating disabilities of the spine were revised.

The Board notes that in Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) overruled Karnas v. Derwinski, 1 Vet. App. 308 (1991), to the extent that it conflicts with the precedents of the United States Supreme Court (Supreme Court) and the Federal Circuit.  See Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991).  In VAOPGCPREC 7- 2003, the General Counsel held that Karnas is inconsistent with Supreme Court and Federal Circuit precedent insofar as Karnas provides that when a statute or regulation changes while a claim is pending before VA or a court, whichever version of the statute or regulation is most favorable to the claimant will govern unless the statute or regulation clearly specifies otherwise.  The General Counsel held that the rule adopted in Karnas no longer applies in determining whether a new statute or regulation applies to a pending claim.  The General Counsel indicated that pursuant to Supreme Court and Federal Circuit precedent, when a new statute is enacted or a new regulation is issued while a claim is pending before VA, VA must first determine whether the statute or regulation identifies the types of claims to which it applies.  If the statute or regulation is silent, VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely retroactive effects.  If applying the new provision would produce such retroactive effects, VA ordinarily should not apply the new provision to the claim.  If applying the new provision would not produce retroactive effects, VA ordinarily must apply the new provision.  VAOPGCPREC 7-2003.

In accordance with VAOPGCPREC 7-2003, the Board has reviewed the revised rating criteria.  The revised rating criteria would not produce retroactive effects since the revised provisions affect only entitlement to prospective benefits.  Therefore, VA must apply the new provisions from their effective date along with prospective application of the old criteria that were in effect at the time when the Veteran first filed the claim on appeal.

Under the criteria in effect prior to September 23, 2002, intervertebral disc syndrome warrants a noncompensable evaluation if it is postoperative, cured.  A 10 percent evaluation is warranted if it is mild.  A 20 percent evaluation is warranted if it is moderate with recurring attacks.  A 40 percent evaluation is authorized for intervertebral disc syndrome if it is severe with recurrent attacks and intermittent relief.  A 60 percent evaluation is warranted for intervertebral disc syndrome which is pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief.  38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002).

Under the interim revised criteria of Diagnostic Code 5293, effective September 23, 2002, intervertebral disc syndrome is evaluated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months, or by combining under 38 C.F.R. § 4.26 (combined rating tables) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, which ever method results in the higher evaluation.  A maximum 60 percent evaluation is warranted when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months.  A 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months.  A 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, and a 10 percent evaluation is assigned with the incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the past 12 months.

Note 1 provides that for the purposes of evaluations under Diagnostic Code 5293, 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.  "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so.  Note 2 provides that when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes.  Evaluate neurological disabilities separately using evaluation criteria for the most appropriate neurological diagnostic code or codes.  38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003).

Under the criteria in effect prior to September 26, 2003, lumbosacral strain with characteristic pain on motion warrants a 10 percent disability rating.  A 20 percent evaluation is warranted for lumbosacral strain with muscle spasm on extreme forward bending, and loss of lateral spine motion, unilateral, in a standing position.  Severe lumbosacral strain with listing of the whole spine to the opposite side; positive Goldthwaite's sign, marked limitation of forward bending in a standing position, a loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, warrants a 40 percent evaluation.  38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003).

Under the criteria in effect prior to September 26, 2003, limitation of motion of the lumbar spine warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate or a 40 percent evaluation if it is severe.  38 C.F.R. § 4.71a, Diagnostic Code 5292 (2003).

Effective September 26, 2003, the criteria for evaluating disabilities of the spine were revised with reclassification of the diagnostic codes.  These reclassified diagnostic codes include 5237 (lumbosacral or cervical strain), 5242 (degenerative arthritis of the spine), and 5243 (intervertebral disc syndrome).  Reference is made to Diagnostic Code 5003 for degenerative arthritis of the spine and to the formula for rating intervertebral disc syndrome based on incapacitating episodes with instructions to apply the higher evaluation when all disabilities are combined.

The September 2003 criteria provide a general rating formula for diseases and injuries of the spine (for diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes) 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:  
Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted for disability of the thoracolumbar spine 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 evaluation is warranted for disability of the thoracolumbar spine 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 evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5237 (2012).

Note (1) permits the evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

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.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  Each range of motion measurement should be rounded to the nearest five degrees.  See Plate V, 38 C.F.R. § 4.71 and 38 C.F.R. § 4.71a, Notes (2) and (4).

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 Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.  38 C.F.R. § 4.71a, Note (3).

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the 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 dysphasia; 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.  38 C.F.R. § 4.71a, Note (5).

Under revised Diagnostic Code 5293 and new Diagnostic Code 5243, intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either 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.

The claim from which this appeal stems was filed in September 2002.  Accordingly, the criteria in effect prior to September 26, 2003 and after September 26, 2003 must be considered.

In accordance with 38 C.F.R. §§ 4.1, 4.2 (2007) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue.  The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes.  Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disabilities.  

Analysis

In a February 1992 rating decision, the Veteran was granted service connection for lumbosacral sprain with right radiculopathy, residuals of injury.  A 10 percent evaluation was assigned, effective from July 17, 1991.

In November 2001, he filed a claim for an increased rating for his low back disability, which was denied in an April 2002 rating decision, based in part on the results of a March 2002 VA examination.  The RO continued the 10 percent evaluation for lumbosacral sprain with radiculopathy and degenerative changes.

In September 2002, the Veteran filed another claim for an increased rating for his low back disability.  He was afforded VA orthopedic and neurological examinations in November 2002 in response to his claim, and in a February 2003 rating decision, the RO again denied his claim, and continued the 10 percent evaluation for the service-connected lumbosacral sprain with radiculopathy and degenerative changes.

The Veteran filed an appeal, and in a July 2004 rating decision, the RO increased the evaluation for the Veteran's lumbosacral sprain with radiculopathy and degenerative changes to 20 percent, under Diagnostic Code 5295, effective September 10, 2002.  The Veteran has continued to appeal the 20 percent rating.

Period prior to September 26, 2003

Under the criteria in effect prior to September 26, 2003, the Veteran's low back disability was rated as 20 percent disabling under Diagnostic Code 5295.  The medical evidence of record shows that prior to September 26, 2003, a rating higher than 20 percent is not warranted under Diagnostic Code 5295.  In this regard, there is no medical evidence of severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, a loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion.  Accordingly, prior to September 26, 2003, a rating higher than 20 percent is not warranted under Diagnostic Code 5295.  
The medical evidence of record also shows that prior to September 26, 2003, there is no evidence of severe limitation of motion of the lumbar spine.  In this regard, during VA examination in March 2002 the Veteran was able to flex to 70 degrees, and in November 2002, he was able to flex to 90 degrees.  Accordingly, a rating higher than 20 percent is also not warranted under Diagnostic Code 5292.  

The Board notes that neither the March 2002 nor the November 2002 VA examiners discussed whether the Veteran experienced pain during range of motion and if so, at what point, or whether there was any additional limitation of motion or functional impairment due to pain or other factors, such as weakened movement, incoordination or excess fatigability, as required under DeLuca.  However, on VA examination in March 2002, the Veteran did not report any functional impairment due to his low back disability.  He reported pain when lifting, bending and twisting, and during daily activities such as laundry.  However, he did not report that he was unable to perform any specific activities due to his low back disability, and he denied the use of assistive devices such as crutches or a cane.  Furthermore, even with his reports of pain, he still demonstrated completely normal flexion of 90 degrees.  In November 2002, he reported difficulty walking, due to pain in his legs, but no other functional impairment due to the low back disability, and he was still able to flex to 70 degrees even with his reported pain.  Painful motion can equate to limitation of motion.  Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).  However, pain alone does not constitute a functional loss under VA regulations that evaluate disability based upon range-of-motion loss.  Mitchell v. Shinseki, No. 09-2169 (U.S. Vet. App. Aug. 23, 2011).  A higher rating would therefore not be warranted on the basis of functional impairment.  Cf. DeLuca, 38 C.F.R. §§ 4.40, 4.45.

The Board has also considered whether a higher rating is warranted under Diagnostic Code 5293.  There is no evidence whatsoever in the record of intervertebral disc syndrome or incapacitating episodes, having a total duration of at least 4 weeks, but less than 6 weeks, during a 12-month period.  Accordingly, a rating higher than 20 percent is also not warranted under Diagnostic Code 5293.

In addition to the March 2002 and November 2002 VA examinations, the Veteran was also afforded orthopedic examinations of his lumbar spine in December 2003, August 2006, December 2008 and February 2010, which were all found by the Board to be inadequate for evaluation purposes because they did not contain clinical findings addressing both the old and new rating criteria for disabilities of the lumbar spine, and they failed to address whether there was increased limitation of motion during flare-ups or any functional impairment from the low back disability, due to pain, weakened movement, excess fatigability, or incoordination.  See December 2003, August 2006, December 2008 and February 2010 VA examination reports, and September 2009, July 2010 and April 2012 Board remands.  

Period beginning September 26, 2003

Accordingly, the only reliable findings with regard to the Veteran's range of motion of the lumbar spine, for the period after September 26, 2003, come from the recent May 2012 VA examination.  

On VA examination in May 2012, the Veteran was able to flex to 40 degrees, with pain noted at 40 degrees.  Even after repetitive-use testing, the Veteran was still able to flex to 40 degrees, and the examiner noted that there was no additional limitation of motion of the lumbar spine.  However, the examiner also noted that there was functional impairment of the lumbar spine, due to pain on movement, less movement than normal, weakened movement, excess fatigability, incoordination, instability of station, disturbance of locomotion, and interference with sitting, standing and/or weight-bearing.  Painful motion can equate to limitation of motion.  Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).  These finding suggests that the Veteran has functional impairment that would equate to limitation of forward flexion to 30 degrees or less.

Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is warranted for limitation of flexion to 30 degrees or less.  Therefore, with consideration of the Deluca factors, the Board reads the evidence as showing functional impairment that is equivalent to limitation of forward flexion to at least 30 degrees, and grants a 40 percent rating for the low back disability, beginning September 26, 2003.  See 38 C.F.R. §§ 4.40, 4.45 (2012).

A higher rating under the general rating formula for back disabilities would require evidence of ankylosis.  Ankylosis has not been reported during the appeal period, and the Veteran was specifically found not to have ankylosis during VA examinations.  

The provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis.  Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997).  The Veteran does not have ankylosis of the thoracolumbar spine, inasmuch as he retains the ability to move the spine and it has not been shown to be fixed.  There is no other basis for a higher schedular rating for the orthopedic manifestations of the low back disability.  Accordingly, the Board finds that a rating in excess of 40 percent is not warranted under the general criteria for rating injuries of the spine.  

A higher rating is also not available under the formula for rating intervertebral disc syndrome based on incapacitating episodes, as there is no evidence of physician-prescribed bed rest.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243.  In this regard, the evidence of record shows that the Veteran did have a period of convalescence in 2003 following cervical and lumbar spine surgery.  However, the evidence of record does not show that he was prescribed bed rest by a physician or that he experienced any episodes of incapacitation due to the low back disability.

Extraschedular Consideration

Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b)(1) (2012).

The question of an extraschedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

If the evidence raises the question of entitlement to an extraschedular rating, 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.  Therefore, initially, 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.  Thun v. Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").

The Veteran's disability, as discussed above, is manifested by limitation of motion and associated functional limitations and neurological symptoms.  This symptomatology is contemplated by the rating criteria which have been applied in this case.  
The rating schedule does contemplate industrial impairment and considerable time lost from work.  38 U.S.C.A. § 1151; 38 C.F.R. § 4.1 (2012).  The Veteran has not reported any symptoms outside of those contemplated by the rating schedule.  
No other factors have been reported that are outside the rating schedule.  Hence, referral for consideration of an extraschedular rating is not warranted.  

In reaching these conclusions the Board has resolved reasonable doubt in the Veteran's favor, where applicable.  38 U.S.C.A. § 5107(b) (West 2002).

Total Rating for Compensation Based on Individual Unemployability (TDIU)

The Court has held that TDIU is an element of all claims for an increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him.  38 C.F.R. § 4.16 (2012).

Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2012) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU).  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).
The central inquiry is, "whether the Veteran's service- connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more.  

A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a).  Marginal employment shall not be considered substantially gainful employment.  38 C.F.R. § 4.16(a).

VA policy is to grant TDIU, regardless of the percentages, when service connected disability actually renders a Veteran unemployable.  38 C.F.R. § 4.16(b).  Where there is evidence that a Veteran is unemployable by reason of service connected disability, but does not meet the percentage requirements, the Board is required to remand the claim, so that it can be referred to VA's Director of Compensation and Pension for adjudication in accordance with 38 C.F.R. § 4.16(b).

The Board has jurisdiction to review determinations of the Director of Compensation and Pension or Undersecretary for Benefits regarding a Veteran's entitlement to an extraschedular rating.  Anderson v. Shinseki, 23 Vet. App.  423, 42-30 (2009).

The record reflects that the Veteran was granted a TDIU due to his service-connected disabilities as of July 27, 2009.  The Veteran contends that he is also entitled to a total disability rating for the time period beginning August 28, 2003 and ending February 4, 2004, because he was effectively unemployable in his profession during that time, due in part to his service-connected low back disability.  He claims that although he did return to work during that time, it was against the advice of his doctors, and only because he was struggling financially.  

The Veteran is currently service connected for a lumbosacral strain, evaluated as 20 percent disabling since September 10, 2002; a cervical sprain, evaluated as 30 percent disabling since July 1, 2003; and post-traumatic stress disorder (PTSD), evaluated as 30 percent disabling since November 7, 2003.  The Veteran's combined evaluation for compensation was 40 percent from July 1, 2003 and 60 percent from November 7, 2003.  As noted above, the Board is increasing the evaluation for the Veteran's service-connected lumbar spine disability to 40 percent as of September 26, 2003.  This would give the Veteran a combined evaluation for compensation purposes of 70 percent from September 26, 2003.  See 38 C.F.R. § 4.25, Combined Ratings Table.  Accordingly, he meets the percentage requirements for consideration of TDIU as of that date.  However, he still does not meet the percentage requirements for TDIU from August 28, 2003 to September 26, 2003.  However, as the Director of Compensation and Pension Services has already considered the issue, the Board will also consider assignment of a TDIU on an extraschedular basis beginning August 28, 2003.  

A September 8, 2003 VA outpatient orthopedic treatment note reveals that the Veteran returned to work on July 1, 2003, following cervical spine surgery in April of 2003.  The note indicated that approximately two weeks prior to his visit, the Veteran had developed headaches and low back pain.  At that time, the Veteran was scheduled for an epidural steroid injection, which he reported had helped relieve his low back pain before, and given a note to take to work, indicating that he should not perform physical labor while his back was rehabilitating.

VA physician, Dr. G.G., in a September 8, 2003 statement, indicated that the Veteran was suffering from what was most likely a low back strain, and recommended that he not perform any heavy lifting or driving of a cement truck so that he would not aggravate his condition.  

In an October 15, 2003 statement, Dr. A.M. indicated that the Veteran was receiving invasive interventions and was expected to go through a period of not less than 10 weeks to recover physically.  The doctor also stated that the Veteran was advised not to do any heavy activity, lifting weight more than 20 pounds or pushing or pulling loads.  

In an October 24, 2003 treatment note, the Veteran's treating physician, Dr. A.M., stated that, in response the Veteran's request to give him a release to go to work, he advised him to consider switching to a different line of work as his job as a cement truck driver would definitely exacerbate his condition and would possibly make it worse in the future.  The doctor stated that he would give the Veteran a written report, stating what his condition was and the kind of treatment he was receiving in the clinic.  The doctor also indicated that the note would not have any specific information as it was difficult to determine what the Veteran could and could not do at the time, without a functional capacity evaluation.  
The Veteran was afforded a VA examination in December 2003.  The examiner diagnosed chronic low back pain, secondary to L3-4, L4-5 spinal stenosis with radiculopathy, not confirmed by objective testing; chronic cervical spine pain, improved with surgery; and right lower extremity radiculopathy, without documented objective findings.  The examiner opined that the Veteran's subjective symptoms indicated that the chronic low back strain and subjective radiculopathy were significantly interfering with his ability to attain gainful employment, although the symptoms could not be objectively documented.  

In a February 2, 2004 statement, Dr. A.M. stated that the Veteran had been under his care since December 25, 2003, and that he could return to work on February 5, 2004.  No further details were provided.  

The Veteran was afforded another VA spine examination in August 2010.  The examiner reviewed the claims file and noted that the Veteran's extent of impairment at that time was moderate without incapacitating episodes; however, he also opined that prior to receiving appropriate medical and surgical treatment 5-7 (2003-2005) years before, the Veteran's employment and activities of daily living were impacted.  He did not however, specifically offer an opinion about the effects of the Veteran's lumbar strain on his employment and activities of daily living from August 28, 2003-February 4, 2004, as requested in the Board's July 2010 remand.  

In a January 2011 report, the Director of Compensation and Pension Services concluded that entitlement to individual unemployability on an extraschedular basis was not warranted.  His rationale was that the evidence did not demonstrate that the Veteran's service-connected conditions prevented him from working in any type of employment setting from August 28, 2003 to February 4, 2004.  He noted that multiple physicians stated that the Veteran should not perform work requiring heavy lifting or pushing or pulling, but none of the physicians stated that the Veteran was unable to perform all types of work for that time period.  He noted further that the objective findings on the medical examinations in 2003 and 2004 did not demonstrate that the Veteran's service-connected conditions alone prevented him from engaging in all types of work-related activities.

In accordance with the Board's April 2012 remand, the Veteran was afforded his most recent VA examinations in May 2012 and December 2012.  The May 2012 examination report indicates that the Veteran reported that in the specific period from 2003-2004, although he also had cervical spine surgery, his lumbar spine limited his daily activities and his work activities.  He reported further that after his neck surgery in April 2003, he neck felt good, but he had to leave work due to the low back and was off of work for 6 months or longer, and eventually lost his job.  He claimed that during that time, he was limited in household activity (lifting, bending, carrying), and at times, his pain would get so bad, he was unable to stand up straight, and he used to wear flip flops so that he could just slide them on.  The December 2012 examination report includes an opinion from Dr. A.B.S., MD, indicating that during the time period roughly approximating the time between August 28, 2003 through February 4, 2004, it is more likely than not that the Veteran was unemployable due to his lumbar and cervical spondylosis and his lumbar radiculopathy during that time period.  She opined further that it is also more likely than not that following his cervical surgery, participation in a job where lifting 50 pounds was a requirement would be medically contraindicated in a patient with active, recurrent spondylitic pain and radiculopathy.  Dr. A.B.S. explained further that although it appears that the Veteran continued to be employed for some time after his cervical fusion, for him to have continued in such employment was medically contraindicated, and that for someone with active lumbar radiculopathy and a history of cervical fusion, the job he described as a truck driver who lifted heavy loads was too risky.  Finally, the doctor noted that it was clear from the treatment notes that although the Veteran could conduct his activities of daily living, he was in significant pain due to the lumbar spondylosis and associated right lower extremity radiculopathy.  She noted that her observations specifically included the time period between August 28, 2003 and February 4, 2004.  

The Board acknowledges the findings of the Director of Compensation and Pension Services.  However, the Board finds that overall, the evidence of record, including physician's statements, statements from the Veteran, and treatment records, is to the effect that the Veteran was experiencing significant occupational impairment due to his service-connected lumbar spine disability from August 28, 2003 to February 4, 2004.  Furthermore, the May and December 2012 VA examiner provided the only adequate medical opinion as to the impact of the lumbar spine disability on the Veteran's employment from August 28, 2003 to February 4, 2004.  That opinion was to the effect that the disability rendered the Veteran unemployable for that time period.  The Board notes that the Director did not have the benefit of consideration of the 2012 examiner's opinion, as it was rendered after the Director's report was issued.  Accordingly, the Board finds that resolving all doubt in the Veteran's favor, the evidence is to the effect that the Veteran's service-connected lumbar spine disability rendered him unemployable from August 23, 2003 to February 4, 2004.  The appeal is, to this extent, granted.


ORDER

A rating in excess of 20 percent for lumbosacral sprain with radiculopathy and degenerative changes prior to September 26, 2003 is denied.

A 40 percent rating for lumbosacral sprain with radiculopathy and degenerative changes is granted from September 26, 2002, subject to the laws and regulations governing the payment of monetary benefits.

Entitlement to a TDIU from August 28, 2003 to February 4, 2004 is granted, subject to the laws and regulations governing the payment of monetary benefits.



____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs