Citation Nr: 1337709 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 10-21 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating, greater than 10 percent, for degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from June 1979 until August 1992 This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied an increased rating. The Veteran appealed the denial in this decision, and the matter is now before the Board. Consideration of the Veteran's appeal has included review of all documents within the Virtual VA paperless claims processing system. The documents within the system do not include any non-duplicative materials pertinent to the present appeal other than an October 2013 brief from the Veteran's representative, which has been considered as part of the present appeal. FINDING OF FACT Throughout the entire rating period, degenerative disc disease of the lumbar spine has been productive of the functional equivalent of 50 degrees of forward flexion, with muscle spasm and abnormal gait. CONCLUSION OF LAW The criteria for a rating of 20 percent for degenerative disc disease of the lumbar spine have been met throughout the rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Code 5243 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. A notice letter was sent to the Veteran in May 2009, prior to the initial adjudication of the increased rating claim on appeal. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Service records have been obtained as have records of private treatment and treatment examination. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. The Veteran was afforded VA examinations in June 2009 and January 2010. For reasons described in greater detail below, the Board finds that the June 2009 examination was not sufficient for rating purposes as the examiner did not adequately describe the degree of motion at which back pain began. Nonetheless, during the January 2010 VA examination the examiner conducted a physical examination of the Veteran, was provided the claims file for review, took down the Veteran's history, considered the lay evidence presented, laid a factual foundation for the conclusions reached, and reached conclusions and offered opinions based on history and examination that are consistent with the record. Increased Rating for Degenerative Disc Disease of the Lumbar Spine Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14. The Veteran was previously awarded service connection and assigned an initial disability rating for the lumbar spine in a rating decision of June 2005. An appeal of the initial rating is not before the Board; rather the Veteran seeks in increased rating. On a claim for increased rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found; such separate disability ratings are known as staged ratings. In Hart v. Mansfield, the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." Hart v. Mansfield, 21 Vet. App. 505, 511 (2007). Here, as the evidence discussed below shows, the disability has not significantly changed and a uniform evaluation is warranted. The Veteran's degenerative disc disease is rated under 38 C.F.R. § 4.71a Diagnostic Code (DC or Code) 5243. Disabilities of the spine are rated under the 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). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. 38 C.F.R. §4.71a (2013). The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for 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 disability rating is assigned for 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 disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also 38 C.F.R. § 4.71a, Plate V. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2013). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In addition, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when symptoms are most prevalent ("flare-ups") due to pain, weakness, premature or excess fatigability, and incoordination. DeLuca, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. For claims in which symptoms of a neurologic defect have been claimed or found, 38 C.F.R. § 4.120 dictates that neurological conditions are to be separately rated in proportion to the impairment of motor, sensory or mental function. 38 C.F.R. § 4.120 (2013). Here, neurologic defects have been identified, and accordingly the RO, in a decision of April 2010, established service connection for radiculopathy of the right lower extremity, and assigned a 10 percent rating. The Veteran has not appealed from that determination, and the matter is not before the Board. Nonetheless, the Board will consider whether the evidence shows that any additional neurologic defects warrant service connection pursuant to 38 C.F.R. § 4.120. The Board has reviewed all of the lay and medical evidence in the claims folder and finds that the Veteran is competent to report many of the symptoms and impairments associated with his service connected low back disability including pain, limitation of motion, and muscle spasms. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). To that end, the Board has not discounted any lay evidence regarding the severity of the low back disability merely because it is lay evidence or because it was reported by the Veteran. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The Veteran contends that his low back disability has been more than 10 percent disabling throughout the period on appeal. Specifically, in May 2009 and September 2010, he stated that manifestations including abnormal gait entitle him to at least a 20 percent rating. After reviewing the entire claims file, the Board finds that the Veteran's service connected low back disability has more nearly approximated the criteria for a 20 percent rating throughout the period on appeal. The disability has been productive of the functional equivalent of 50 degrees of forward flexion, muscle spasm, and abnormal gait. An August 2008 magnetic resonance imaging (MRI) study revealed multilevel lower lumbar spondylosis with left lateral disc herniation at L3-4 and a small central disc herniation at L4-5. Mild spinal canal stenosis at L4-5 was observed, as was severe left foraminal narrowing at L3-4 and moderate bilateral foraminal narrowing at L4-5. In March 2009, a private healthcare provider compared the August 2008 MRI against an earlier MRI from 2004. She concluded that the more recent imaging showed worsening pathology at the L3-4 level. In May 2009, the Veteran underwent a VA examination during which the Veteran endorsed back pain associated with leg pain and weakness. The pain traveled to the right lower leg about twice a month and lasted for one to two hours. Moderate stiffness and weakness were experienced daily and also lasted for one to two hours. Flare-ups caused increased pain, and were precipitated by bending and prolonged sitting or walking. On physical examination, the Veteran's gait was slow and deliberate. Forward flexion was to 90 degrees, and extension, bilateral lateral flexion, and bilateral lateral rotation were all to 30 degrees. Pain was noted on flexion, but there was no indication of where in the Veteran's range of motion such pain began, for this reason the examination is inadequate for rating purposes. Range motion was unchanged following repetition, and there was no additional loss of motion following five repetitions. Muscle spasms were not present. Bilateral straight leg raise testing was negative and lower extremity sensory and motor function was normal. The examiner opined that the Veteran had moderate to severe limitation in his work as a mail carrier. On private evaluation in August 2009, review of an MIR revealed straitening of a lordotic curvature suggestive of a spasm. Sensation and deep tendon reflexes were normal, however straight left caused pain on the right and left sides at 30 degrees. Neurologically the Veteran was intact, and the private physician confirmed the presence of muscle spasms. On VA examination in January 2010, the Veteran reported a history of low back symptomatology and endorsed exacerbating episodes five to six times a week, mainly from walking or bending. During flare ups, the Veteran's ambulation was slowed. The Veteran endorsed three incapacitating episodes in the prior 12 months, during which had was seen by his private physician. These episodes resulted in seven "physician sanctioned days" during the same period. The Veteran had stiffness, numbness, and paresthesias in the right leg all the way to the distal calf and foot weakness. He denied any bladder or bowel complaints, including incontinence, and did not use an assistive device to ambulate. Flare-ups affected the Veteran's ability to dress his lower extremities. Physical examination of the lumbar spine during the January 2010 VA examination was conducted following three repetitions of movement. Flexion was to 80 degrees, with pain starting at 70 degrees, and extension was to 30 degrees with pain at 25 degrees. Lateral and rotary motion was to 30 degrees bilaterally, with pain at 30 degrees. Straight left raise was negative, and gait was normal; sensory examination was normal. On flare-up, the examiner opined that the Veteran would experience 20 additional degrees of loss of flexion, 10 degrees additional loss of extension, and 10 additional degrees loss of lateral motion. In a January 2010 addendum, the examiner clarified that there was no additional loss of motion with flare-ups after three repetitive motions. This is consistent with the examiner's original notation indicating that the examination was conducted following three repetitive movements. The January 2010 examiner determined that although the Veteran's range of forward flexion was limited by pain to the functional equivalent of 70 degrees of motion. It was also opined that, on flare-ups, an additional 20 of flexion would be lost. Thus, through application of DeLuca, the Board finds that the Veteran's forward flexion has been functionally limited to 50 degrees. As previously indicated, the rating criteria provides for a 20 percent evaluation on evidence of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 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. 38 C.F.R. § 4.71a. In order for a higher, 40 percent, evaluation, the evidence must show forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Here, the Veteran not only has greater than 30 degrees of flexion of the thoracolumbar spine, the fact that he has such motion necessarily means that he does not have ankylosis. The Board has also considered whether a rating of greater than 20 percent may be assigned under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes which provides for a 40 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Note (1) to DC 5243 (effective September 26, 2003) provides that, for purposes of ratings under DC 5243, 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. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. Here, January 2010 VA examiner recorded the Veteran's endorsement of seven days of incapacitating episodes, described as "physician sanctioned days" during the prior 12 month period. It is unclear whether such days meet the definition of an incapacitating episode as described in Note (1). However even if these were days of physician-prescribed bed rest, without evidence of at least 4 weeks of such days, a rating of higher than 20 percent under DC 5243 is not warranted. With regard to ratings for other neurologic symptomatology, other than radiculopathy of the right lower extremity for which service connection has already been established, the Veteran does not have neurologic symptomatology which has been identified as related to his service-connected low back disability. Thus, a separate rating is not warranted under 38 C.F.R. §§ 4.120, 4.123, or 4.124. Accordingly, the Board concludes that the Veteran's degenerative disc disease of the lumbar spine has been 20 percent disabling throughout the entire rating period on appeal. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extraschedular Consideration The Board has also considered whether referral for an extraschedular rating is warranted for the service-connected degenerative disc disease of the lumbar spine. 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 Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here the schedular rating criteria used to rate the Veteran's service-connected disability above, reasonably describe and assess the Veteran's disability level and symptomatology. The criteria rate the disability on the basis of loss of range of motion, muscle spasms and abnormal gait when present, and associated neurologic symptomatology; thus, the demonstrated manifestations - namely loss of range of motion, right lower extremity radiculopathy, and abnormal gait - are contemplated by the provisions of the rating schedule. As the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate. The schedular rating criteria also include analogous symptoms that are "like or similar to" listed schedular rating criteria. Mauerhan, 16 Vet. App at 442; see also 38 C.F.R. § 4.21 (2013). For these reasons, the Board finds that the schedular rating criteria is adequate to rate the Veteran's degenerative disc disease of the lumbar spine, and referral for consideration of an extra-schedular evaluation is not warranted. Finally, the record does not reveal that the Veteran is claiming that he is rendered unemployable by virtue of his low back disability, and the Board finds that the record has not raised an implied claim for a total disability rating based on individual unemployability due to service-connected disabilities pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009); thus no discussion or remand of such a claim in warranted. Furthermore, although the May 2009 VA examiner indicated that the Veteran's work was moderately to severely limited due to his low back, the disability did not preclude employment, and the limitation described are adequately encompassed by the schedular rating criteria as described above. ORDER A rating of 20 percent, and no higher, for degenerative disc disease of the lumbar spine is granted. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs