Citation Nr: 1337541 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 11-20 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an initial disability rating for degenerative disc disease of the lumbar spine in excess of 10 percent. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD S. Delhauer, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1984 to March 1988, and September 1990 to July 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran was scheduled for a Travel Board hearing in November 2012. Prior to the hearing, in November 2012, the Veteran requested to cancel his hearing. Therefore, his request for a hearing is considered withdrawn. At his October 2011 hearing before a decision review officer (DRO), the Veteran reported he was unemployed because of symptoms associated with his service-connected degenerative disc disease of the lumbar spine. In August 2012, the RO issued a rating decision denying the Veteran's inferred claim of individual unemployability. The Veteran did not perfect an appeal of that decision. Thus that decision is final and that issue is not currently before the Board. A review of the Virtual VA paperless claims processing system includes VA treatment records dated from February 2011 to July 2012. Other documents on Virtual VA are duplicative of the evidence of record. The Veterans Benefits Management System (VBMS) does not include any relevant documents. FINDINGS OF FACT 1. The Veteran's degenerative disc disease of the lumbar spine is manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, with functional loss and/or impairment due to pain on movement and weakened movement. No ankylosis, incapacitating episodes, or neurological abnormalities in the right lower extremity have been shown. 2. The Veteran is in receipt of a separate rating for neurological abnormalities in the left lower extremity, and the issue is not currently in appellate status. CONCLUSION OF LAW The criteria for a 20 percent rating, but no higher, for degenerative disc disease of the lumbar spine have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of: (1) any information and medical or lay evidence that is necessary to substantiate the claim; (2) what portion of the information and evidence VA will obtain; and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim: (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 v. Nicholson, 19 Vet. App. 473 (2006). The RO provided pre-adjudication VCAA notice by letter dated in February 2011. The Veteran was notified of the evidence needed to substantiate his claim for service connection for a lumbar spine disability, as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claim. In cases where a compensation award has been granted and an initial disability rating and effective date have been assigned, the typical claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required, because the purpose that the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. 473; see also VAOPGCPREC 8-2003 (December 22, 2003). Thus, because service connection for degenerative disc disease of the lumbar spine has already been granted, VA's VCAA notice obligations with respect to that issue are fully satisfied, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Lay statements, service treatment records, VA treatment records, and private treatment records identified by the Veteran have been associated with the record. In a December 2011 VA physical therapy interim note, it is noted that the Veteran reported visiting a chiropractor that same month, and that he stated it helped with his back pain. The record contains a notation by the RO that in June 2012 the Veteran was asked to submit a signed form authorizing VA to obtain treatment records from that December 2011 chiropractor. The Veteran did not submit any signed authorization form for those records or identify that chiropractor. The Veteran has not provided the name or contact information of any private treating providers other than those already of record. The Veteran has an obligation to cooperate with VA in the development of his claim; the duty to assist is not a one-way street. 38 C.F.R. § 3.159; Wood v. Derwinski, 1 Vet. App. 190 (1991). Additionally, the Veteran was afforded two VA thoracolumbar spine examinations during the appeal period, in February 2011 and May 2012. Both VA examination reports are thorough and supported by the other treatment evidence of record. The examination reports discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. The examination reports also discussed the impact of the disability on the Veteran's daily living. Based on the examinations and the absence of evidence of worsening symptomatology since the most recent examination, the Board concludes the February 2011 and May 2012 examination reports in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. Rating Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating factors for a disability of the musculoskeletal system include functional loss due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court also has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance." Id., quoting 38 C.F.R. § 4.40. As the issue on appeal is for a higher rating, consideration of whether the criteria for the current rating is met is not necessary and the analysis below will focus on whether the Veteran meets the criteria for a higher rating for his spine. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. See 38 C.F.R. § 4.71(a) Diagnostic Code 5243, Note (6). The General Rating Formula (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes) is as follows: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: Unfavorable ankylosis of the entire spine ............................100 percent Unfavorable ankylosis of the entire thoracolumbar spine......50 percent 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...............................................................40 percent Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine..........................................................30 percent Forward flexion of the thoracolumbar spine 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.................20 percent Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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..................................................10 percent 38 C.F.R. § 4.71a, The Spine. Under Note (1), objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. When using the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is warranted when there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 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, Diagnostic Code 5243. The normal findings for range of motion of the lumbar spine are flexion to 90 degrees, extension to 30 degrees, lateral flexion, right and left, to 30 degrees, and rotation, right and left, to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Analysis At his October 2011 hearing before a decision review officer (DRO), the Veteran testified that due to the nature of his service-connected degenerative disc disease of the lumbar spine, he "can pretty well move" side-to-side, "but as far as bending down, it's difficult," that "[s]quatting is non-existent," and that it is extremely difficult for him to get up from a lying or prone position. The Veteran testified his back pain is a dull pain in the morning that gradually increases to a sharp pain, the pain is constant, and that the pain is worse when he is still, but improves as long as he is moving. The Veteran also testified to having muscle spasms, and that when he cuts his grass he has to lay down afterwards because as his back "cool[s] down...it starts to ache, and [he] start[s] to spasm...." On VA thoracolumbar spine examination in February 2011, the Veteran reported chronic low back pain which began in the early 2000s, and that it had gradually worsened over the years. He reported constant dull throbbing pain in his back. The Veteran reported flare-ups of his back pain several times a day of severe pain lasting for minutes, triggered by squatting, bending, lifting, twisting, and prolonged sitting, but that stretching and "walking it off" alleviated the pain. The examiner reported no incapacitating episodes. The examiner noted the Veteran had an antalgic gait and scoliosis, but no ankylosis of the thoracolumbar spine. The examiner further noted no spasm, no guarding, but that the Veteran did have pain with motion to the right and left. Thoracolumbar flexion was 0 to 80 degrees, extension was 0 to 15 degrees, lateral flexion to the left was 0 to 25 degrees, lateral flexion to the right was 0 to 30 degrees, left rotation was 0 to 15 degrees, and right rotation was 0 to 20 degrees. Pain and painful motion were present on exam. With repetitive use times three, the range of motion was not additionally limited. At a November 2011 VA physical therapy outpatient evaluation, the physical therapist reported the Veteran's active range of motion of his lumbar spine as follows: flexion was 60 degrees, extension 10 degrees, "side bending bilaterally 20, [and] rotation bilaterally approx[imately] 75% no[rm]al." At his third physical therapy session in November 2011, the physical therapist noted the Veteran had a forward bent posture and an antalgic gait pattern that date. At his fourth physical therapy session in December 2011, the Veteran reported significant low back pain, that he was having trouble finding a comfortable sleeping position, and he reported to the physical therapist that he was in too much pain to do any exercises. The December 2011 VA Physical Therapy Discharge Summary stated as a problem that the Veteran had limited participation in therapeutic exercises due to complaints of pain. At a March 2012 VA General Medical Examination, the Veteran reported that he was able to be on his feet for three to four hours per day, or for one hour continuously. The Veteran reported he could sit continuously for one to two hours, and six to seven hours total per eight hour work day in an ergonomically appropriate chair. Further, the Veteran reported he had difficulty getting out of bed in the morning, and that he had to get warmed up. The Veteran reported he could cut the grass, but that he couldn't do any raking, and he could not lift over 25 pounds. The Veteran also reported difficulty with bending over frequently, and problems with frequent twisting. The examiner reported no gross antalgic gait was noted on examination. On VA thoracolumbar spine examination in May 2012, the Veteran complained of worsening back pain, and reported flare-ups with cold weather and immobility. The examiner reported the Veteran had localized tenderness or pain to palpitation and/or soft tissue in the left sacroiliac area, but that the Veteran did not have guarding or muscle spasm of the thoracolumbar spine. Thoracolumbar flexion was 0 to 70 degrees, extension was 0 to 30 degrees, lateral flexion to both sides was 0 to 30 degrees, and left and right rotation was 0 to 30 degrees. Painful motion was present on exam. With repetitive use times three, the range of motion was not additionally limited. The Veteran had functional loss and/or functional impairment of the thoracolumbar spine due to weakened movement, pain on movement, and pain that began at 60 degrees forward flexion. The examiner reported the Veteran did not have intervertebral disc syndrome of the thoracolumbar spine, and no other pertinent physical findings, complications, conditions, signs, or symptoms. Regarding the criteria for orthopedic manifestations under the General Rating Formula, considering pain and functional loss due to pain, flexion was at most limited to 60 degrees. These findings more nearly approximate or equate to limitation of flexion of the lumbar spine to greater than 30 degrees but not greater than 60 degrees, when considering additional functional loss due to pain, pain on movement, swelling, atrophy, fatigue, weakness, incoordination, to include during flare-ups and with repeated use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). However, no ankylosis has been shown by the lay and medical evidence of record. As such, a rating of 20 percent, but no higher, is warranted under the General Rating Formula. As there is no lay or medical evidence of incapacitating episodes, that is, bed rest prescribed by a physician and treatment by a physician, having a total duration of at least 4 weeks but less than 6 weeks during a 12 month period, the Veteran does not meet the criteria for the next higher rating of 40 percent under Diagnostic Code 5243 for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. As to whether additional compensation for neurological impairment is warranted, the General Rating Formula requires consideration of neurological findings, to include bladder or bowel impairment, separate from orthopedic manifestations. In the May 2011 rating decision, the RO inferred a claim for service connection for left lower extremity lumbar radiculopathy secondary to the Veteran's degenerative disc disease of the lumbar spine, which the RO granted with an evaluation of 20 percent. In his June 2011 notice of disagreement, the Veteran stated he disagreed with the 10 percent initial rating for his degenerative disc disease, and he did not mention the radiculopathy, so the left lower extremity lumbar radiculopathy rating is not presently on appeal. Both the February 2011 and the May 2012 VA examiners noted the Veteran's left lower extremity lumbar radiculopathy, but reported that no other neurologic abnormalities or findings related to a thoracolumbar spine condition were noted, and the record does not indicate the Veteran has complained of any other neurological symptoms. Thus, another separate rating for an objective neurological abnormality is not warranted. Extraschedular Rating While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology pertaining to his service-connected degenerative disc disease of the lumbar spine. The Veteran's degenerative disc disease of the lumbar spine is manifested by pain, stiffness, weakness, and limitation of motion. The ratings assigned contemplate these impairments. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to a 20 percent rating, but no higher, for degenerative disc disease of the lumbar spine is granted, subject to the regulations controlling the payment of VA monetary benefits. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs