Citation Nr: 1337102 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 07-37 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a disability rating higher than 20 percent for chronic low back strain, with degenerative joint disease L5/S1. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from February 1989 to April 1995. This matter comes before the Board of Veterans' Appeals (Board) from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) above, which increased the Veteran's disability rating for his service-connected back disability to 20 percent, effective August 2007. The Veteran submitted a timely notice of disagreement and substantive appeal with respect to the disability rating assigned to his service-connected back disability, thereby perfecting an appeal as to that issue. On his November 2007 substantive appeal, submitted via VA Form 9, the Veteran requested a Board hearing in conjunction with his claim, which he stated could be conducted at his local RO or via video conference. Notice of the scheduled hearing was sent to the Veteran's address of record; however, he did not report to the scheduled hearing and he has not provided good cause as to why a new hearing should be scheduled. The Board finds that all due process has been satisfied with respect to the Veteran's right to a hearing. The Veteran's claim was remanded by the Board in December 2012. All of the ordered development has been completed in that voluminous VA treatment records were obtained and associated with the Virtual claims file and the Veteran has been afforded a VA spine examination. Thus, there has been full compliance with the prior remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that additional evidence, in the form of additional VA treatment records associated with the Virtual claims file, has been obtained by the Agency of Original Jurisdiction since the February 2013 supplemental statement of the case. The Board has received a waiver of the Veteran's right to have the evidence initially considered by the RO from his representative. Thus, the evidence can be considered by the Board in the first instance. FINDING OF FACT The preponderance of the probative evidence of record indicates that the Veteran's chronic low back strain manifests in a moderate limitation in range of motion and subjective complaints of pain, with forward flexion greater than 30 degrees and no neurological deficits attributable to the Veteran's service-connected lumbosacral strain. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for chronic low back strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). Here, the Veteran was sent a letter in August 2007 that fully addressed all notice elements and was issued prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him 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. The Board notes that the claim was previously remanded for an additional VA examination. The Veteran was afforded an additional examination in order to further consider loss of motion on flare-ups as well as additional findings consistent with the DeLuca criteria. The additional VA examination in January 2013 did not yield information with which to allow the Veteran an increased rating for his back disability, as discussed more thoroughly below. It is clear that any invalidity in the VA report findings is due to a voluntary lack of effort on the part of the Veteran. The Court has held that VA's duty to assist a veteran in developing the facts and evidence pertinent to a veteran's claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the responsibility of veterans to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). In light of the Veteran's lack of cooperation, the Board will not remand this case for additional examination. There is no evidence that such testing would be any more reliable than the January 2013 VA examination. The Board will proceed and adjudicate the claims based on the evidence of record. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Regulations and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2013); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2013); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2013); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10 (2013). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran is currently rated as 20 percent disabled under Diagnostic Code 5242 (previously 5295) for chronic low back strain. A 20 percent evaluation is warranted where there is evidence of forward flexion of the thoracolumbar spine 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. A 40 percent evaluation requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2013); see also 38 C.F.R. § 4.45 (2013). Turning to the evidence, the Board notes that service connection was established for chronic low back muscular strain by a June 1995 rating decision. The Veteran claimed for a higher rating in August 2007. The RO increased the Veteran's disability rating for his chronic low back strain to 20 percent effective the date of his claim in August 2007. The Veteran was afforded a VA examination in September 2007. The Veteran complained of daily low back pain with radiation to the left leg. He indicated that he had to walk with a cane and a brace with treatment including Motrin and muscle relaxants. He had flare-ups on a weekly basis, lasting for several hours, with treatment by medication. The Veteran complained of moderate to severe pain getting on and off the examination table. His range of motion appeared to be painful with flexion to 40 degrees; extension to 15 degrees; lateral flexion to 20 degrees bilaterally; and rotation to 10 degrees bilaterally. The range of motion was not additionally limited following repetitive motion. His straight leg raising was to 45 degrees on the right and 35 degrees on the left. He had mildly decreased strength at the left knee in both flexion and extension but his sensory examination was normal. His deep tendon reflexes were 2+ and equal bilaterally. The Veteran's gait was somewhat stiff with lumbar splinting and mildly broad based. He had difficulty standing on tiptoe, standing on a single foot and walking on his heels. The Veteran had a lumbar spine x-ray in February 2008. The results were negative for any abnormalities. The Veteran was afforded an additional VA examination in January 2013. The Veteran was diagnosed with chronic lumbar strain and degenerative disc disease of the lumbar spine as well as arthritis. The Veteran contended that he was constantly in pain but he took no medication to control the pain. He stated that he used a tens unit and a heating pad to help with his back pain; he also used a back brace at all times when awake. The range of motion measurements were 10 degrees of forward flexion with painful motion beginning at 0 degrees; extension to 10 degrees with pain beginning at 0 degrees; right lateral flexion to 20 degrees with painful motion beginning at 20 degrees; left lateral flexion to 20 degrees with painful motion beginning at 20 degrees; right lateral rotation at 30 degrees with no objective evidence of painful motion; and left lateral rotation at 30 degrees with no objective evidence of painful motion. Range of motion after repetitive-use testing was the same as the initial testing. The examiner reported that the functional loss was less movement than normal and pain on movement. The Veteran reported pain to palpitation of the soft tissues over the midline of the sacrum and the posterior iliac spine. There was no guarding or muscle spasm. Muscle strength testing was 5/5 in all muscle groups and the Veteran had no muscle atrophy. The reflex and sensory exam testing was normal and the Veteran's vibratory sense was intact to tuning fork testing at the knees, ankles and toes. The Veteran had negative straight leg testing. There were no signs or symptoms of radiculopathy. The examiner noted that the Veteran did not have intervertebral disc syndrome of the thoracolumbar spine. The examiner, in notes at the end of the examination report, called into question the Veteran's level of effort during his objective testing. The examiner noted that the Veteran exhibited a non-physiologic response to muscle testing with unreproducible muscle testing during the exam. The examiner noted that, when distracted, the Veteran's muscle strength was equal bilaterally at the quads, hamstrings, calves and feet; he also heel and toe walked without limitation. The examiner indicated that the Veteran limited his range of motion during testing, including repetitive testing and pain on motion under the DeLuca criteria, to 10 degrees of flexion but was able to bend to more than 60 degrees when retrieving his car keys and was able to lean over and remove his shoes and socks. The examiner indicated that the Veteran's back condition impacted his ability to work as he tried to avoid bending his back at work and wore a brace. The Veteran is employed as a maintenance technician at a cable company; climbing ladders, performing maintenance on cable lines, and driving a vehicle. The examiner indicated that the Veteran can perform both walking and sedentary jobs. VA treatment records during the relevant period reflect that the Veteran complained of pain in his lower back. More specifically, an August 2012 treatment note indicates that the Veteran had tenderness to palpitation of the lumbar spine. His motor function, reflexes and sensation were intact and he had a stable gait with comfortable posture. A May 2013 treatment note indicates that the Veteran had lower back pain with radiation to the left leg with pain and numbness. An MRI showed mild degenerative joint disease at L1-2, L4-5 and L5-S1 with nonextruding discs. There was no nerve encroachment and no spinal stenosis. The Veteran declined pain medication or a muscle relaxant. The preponderance of the probative evidence of record indicates that the Veteran's chronic low back strain manifests in a moderate limitation in range of motion and subjective complaints of pain, with forward flexion greater than 30 degrees and no neurological deficits attributable to the Veteran's service-connected lumbosacral strain. This finding is on the basis of the September 2007 examination results concerning range of motion and the lack of a diagnosis of radiculopathy related to the Veteran's service-connected back disability. The Board notes that the Veteran was granted a 20 percent disability rating for his back on the basis of the September 2007 examination report. However, the examiner during the most recent, January 2013, VA examination report indicated that the Veteran's complaints of loss of range of motion with pain and muscle disturbance were not borne out by objective evidence; were embellished; and, more plainly, that his range of motion during testing versus when observed in a casual setting were vastly different. See Madden v. Gober, 123 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the weight, credibility, and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). Thus, the Board finds the medical evidence to be entitled to great probative value and assigns little probative weight to the Veteran's contentions regarding the severity of his disability. On that basis, the Board is disregarding the range of motion studies during the January 2013 examination and declines to award a higher disability rating on this basis. The Board has considered functional loss due to flare-ups, pain, fatigability, incoordination, pain on movement, and weakness. See DeLuca, 8 Vet. App. 202 (1995). However, again, the January 2013 examiner indicated that the Veteran's effort on DeLuca testing was limited in an attempt to deceive the examiner in order to receive additional monetary benefits. The January 2013 examiner additionally indicated that there were no signs or symptoms of radiculopathy and no intervertebral disc syndrome. Thus, rating the Veteran's back disability with diagnostic codes concerning these additional disabilities is not warranted in this case. In sum, an evaluation in excess of the 20 percent evaluation currently assigned to the Veteran's lumbosacral strain is not warranted, and such evaluation adequately compensates the Veteran for the objective findings. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2013). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected back disability but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to a disability rating higher than 20 percent for chronic low back strain, with degenerative joint disease L5/S1, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs