Citation Nr: 1337831 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 07-28 330 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for service-connected thoracic spine facet with hypertrophy and degenerative changes (back disability). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from September 1985 to February 1986 and from March 1986 to October 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Winston-Salem, North Carolina. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. This matter was previously before the Board in April 2011 and February 2012 at which time it was remanded for further development. The directed development has been completed, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. For the entire rating period, the Veteran has demonstrated forward flexion of the thoracolumbar spine to greater than 60 degrees and a combined range of motion for his thoracolumbar spine of greater than 120 degrees. 2. For the entire rating period, the evidence has not shown muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 3. The Veteran has not required at least two weeks of prescribed bed rest during any 12 month period of his appeal. 4. The Veteran's service connected back disability has not been shown to cause a separate neurological disability. 5. The Veteran does not have ankylosis in his spine. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for a back disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.40, 4.45. 4.71a, Diagnostic Codes 5235-5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice 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; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). As the Veteran's appeal arises from his disagreement with the initial rating following the grant of service connection no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes the Veteran's treatment records, VA examination reports, and lay evidence. No additional pertinent evidence has been identified by the claimant as it relates to his thoracic spine disorder. The Veteran was afforded VA examinations in May 2005, December 2008, and July 2011, which are adequate in that they have provided the Board with the information necessary to rate the Veteran's claim. No results of range of motion testing were listed from the Veteran's back in the report from the December 2008 VA examination, but the additional information provided in the December 2008 examination report is found to be highly probative, and the Board remanded the Veteran's claim to provide him an additional examination to obtain current range of motion findings. The Veteran's representative wrote in an October 2011 brief that if the Board was unable to reach a favorable decision for the claim it could be argued that an additional medical opinion was required due to the "vast differences" in the assessment of the Veteran's thoracic spine condition from the current examination to the previous examination in 2008. However, the representative did not explain what any of these vast differences were, and the Board has found no reason to doubt the accuracy of the findings of any of the provided VA examinations. It is also noted that the Veteran's demonstrated forward flexion at both is 2005 and 2011 examination was roughly equivalent, making it unclear what the vast differences are. As such, the Board believes that the 2011 examination is fully adequate for rating purposes, and does not find a sufficient reason that would justify a remand for an additional examination. Of note, neither the Veteran, nor his representative, has alleged any actual worsening of the Veteran's back disability since his 2011 VA examination. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and by being afforded the opportunity to appear at a hearing if so desired. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran. Entitlement to a Higher Initial Evaluation Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes with a total duration of at least 1 week, but less than 2 weeks, during the past 12 months; a 20 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes with a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months; a 40 percent rating is assigned when intervertebral disc syndrome causes 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 rating is assigned when intervertebral disc syndrome causes incapacitating episodes having a total duration of at least 6 weeks, during the past 12 months. 38 C.F.R. § 4.71a, 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. Id., Note (1). Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for a lower back disability when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or when there is vertebral body fracture with loss of 50 percent or more of the height. The next higher rating of 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there is 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 rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less; and a rating in excess of 40 percent is not available unless ankylosis is present. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, are to be rated under an appropriate diagnostic code. 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 Plate V, 38 C.F.R. § 4.71a. The Veteran maintains that the symptomatology associated with his thoracic spine disorder warrants an evaluation that is higher than the 10 percent rating that is currently assigned. He maintains that the limited range of motion and other resultant residuals of his service-connected thoracic spine disorder support an increased evaluation. In conjunction with his claim, the Veteran was afforded a VA examination in May 2005. At the time of the examination, the Veteran reported suffering from constant pain. He indicated that the pain could be elicited with physical activity and stress. He stated that it was relieved by rest, medication, Soma, and TENS unit. The Veteran indicated that the pain worsened with standing or lifting. Over the previous year, he reported having two incidents of incapacitation totaling two days. The Veteran stated that a physician had recommended bed rest. He indicated that he could not endure prolonged standing, and could not do sit-ups, run, jump, march, or lift. Examination of the thoracolumbar spine revealed no complaints of radiating pain on movement. Muscle spasm was absent. There was tenderness of the thoracic spine. Straight leg raising was negative on the right and left. There was no spinal ankylosis. Range of motion was as follows: flexion from 0 to 80 degrees, with pain starting at 60 degrees; extension from 0 to 30 degrees, with pain starting at 20 degrees; right and left lateral flexion from 0 to 30 degrees; and right and left rotation from 0 to 30 degrees. The examiner indicated that the Veteran's joint function was additionally limited after repetitive use by pain and stated that pain had the major functional impact. The Veteran's range of motion was not additionally limited by fatigue, weakness, lack of endurance, or incoordination. The examiner did not find any signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. Gross examination of the muscle was within normal limits. The Veteran could tie his shoes without difficulty. His posture and gait were within normal limits. He did not require any assistive device for ambulation. Neurological examination of the lower extremities revealed motor function within normal limits. Sensory function was also within normal limits. The right and left lower extremities revealed 2+ knee and ankle jerks. Treatment records associated with the claims folder reveal that the Veteran reported having continuous mid-back pain from 2006 through 2007. In his August 2007 substantive appeal, the Veteran reported having constant pain and spasms. He noted having tried injections, medications, therapy, and a TENS unit with no relief. He stated that he could not stand for more than 15 minutes without the pain intensifying. A February 2008 CT scan of the thoracic spine revealed a tiny left paracentral central disc protrusion at T3-4 with an otherwise unremarkable study. At a December 2008 VA examination, the Veteran indicated that his thoracic spine disorder had become progressively worse. He had undergone physical therapy, used a TENS unit, and received local injections with poor response. He stated that the use of the TENS unit, Soma, and Ultram had provided fair and temporary relief. The thoracic spine disorder had not resulted in urinary difficulties, fecal incontinence, constipation, erectile dysfunction, numbness, paresthesias, leg or foot weakness, falls, or unsteadiness. The Veteran reported using a cane and stated that he was able to walk more than 1/4 mile but less than one mile. There were no incapacitating episodes from the spine disorder. Physical examination revealed a normal posture and a mildly antalgic gait favoring the right lower extremity. Spinal examination revealed no Gibbus, kyphosis, lumbar lordosis, lumbar flattening, scoliosis, reverse lordosis, or thoracolumbar spine ankylosis. Thoracic sacrospinalis examination revealed no spasm, atrophy, or guarding. There was pain with motion and tenderness on the right and left. There was no weakness and the tenderness was not severe enough to be responsible for an abnormal gait or abnormal spinal contour. Motor examination was 5/5 for knee extension, ankle dorsiflexion, ankle plantar flexion, and great toe extension. Sensory examination was normal for the lower extremities for vibration, pinprick, light touch, and position sense, with no abnormal sensation being noted. Reflex examination revealed hypoactive findings for the knee and ankle jerks and normal findings for plantar flexion. X-rays of the thoracic spine revealed minimal degenerative disc disease and spondylosis of the mid dorsal spine with minimal anterior wedging compression of the vertebral bodies from T7-10. The examiner indicated that the Veteran's service-connected cervical and thoracic spine disabilities prevented him from playing sports and had a moderate effect on exercise, recreation, and traveling. It had a mild effect on shopping, bathing, dressing, and grooming. In April 2011, the Board remanded the Veteran's claim for an additional VA examination, noting that the December 2008 VA examination did not contain ranges of motion for the thoracolumbar spine. This examination was provided in July 2011. At the examination, the Veteran reported constant aching in the mid-thoracic area, radiating toward the left chest. He described experiencing flare-ups two times per month that lasted two days. Prolonged standing and lifting caused increased pain. He used Ultram and Soma for relief. The Veteran had no problems with performing his activities of daily living and required no assistive devise. He denied bowel, bladder, or erectile dysfunction problems. He also denied having any incapacitating episodes in the previous 12 months. Physical examination revealed that the Veteran walked in a rhythmic and symmetric fashion. Range of motion testing for the back revealed flexion to 70 degrees, extension to 20 degrees, right and left lateral bending to 35 degrees, and right and left lateral rotation from 0 to 50 degrees. All major muscle groups in both lower extremities were grade 5/5 with no sensory loss in the torso or lower extremities. Deep tendon reflexes were +4 at the knees and ankles. There appeared to be no increased loss of functioning after repetitive motion due to pain, weakness, lack of endurance, or incoordination. There was no scarring or paraspinal spasm. The Veteran complained of some spinal tenderness at the level of the inferior border of the scapula in the midline. There was no swelling, redness, or heat noted. Straight leg raising tests were positive on the right at 70 degrees and at 50 degrees on the left. X-rays of the Veteran's thoracic spine revealed normal vertebral height and normal disc spaces throughout. No evidence of osteophytosis was noted. It was the examiner's impression that the Veteran had chronic thoracic spine pain. The examiner stated that the Veteran did not have any neurologic impairment. He estimated that the Veteran was experiencing a slight or mild disability from his spinal condition, which was primarily due to his diminished range of motion. There were no incapacitating episodes resulting from his thoracic spine. As described above, the Veteran has consistently demonstrated forward flexion in his back that exceeds than 60 degrees throughout the appeal period, including forward flexion to 80 degrees in 2005 and 70 degrees in 2011. Treatment records do not show any additional range of motion testing of the Veteran's back. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Here, the examiner did note that the Veteran experienced some pain on range of motion testing, but it was not suggested the pain so functionally limited the Veteran that his forward flexion would be effectively limited to 60 degrees or less or the combined range of motion limited to 120 degrees or less. Moreover, even if the Veteran's range of motion in his back was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. In this case, it has not been shown to do so. In fact, at the 2011 VA examination, the examiner specifically found that there was no additional loss of functioning after repetitive motion due to pain, weakness, fatigability, or lack of endurance. Therefore, a rating in excess of 10 percent is not warranted based on limitation of motion of the thoracolumbar spine. The Board has also considered the Veteran's flare-ups. For example, at the July 2011 VA examination, the Veteran reported flare-ups 2-3 times per month, but the examiner noted that the Veteran did not actually experience any incapacitating episodes. As such, the Board does not believe that the flare-ups are of such frequency or pervasiveness that they would justify a higher rating. To the extent that the Veteran does experienced incapacitating episodes of back pain, this impairment is contemplated under the criteria for rating intervertebral disc syndrome that is discussed bellow. Moreover, it has not been shown that the Veteran's flare-ups have further functionally limited the range of motion in his back. As noted, a rating in excess of 10 percent may also be assigned if a back disability causes muscle spasms or guarding that is of such severity as to cause an abnormal gait, or an abnormal spinal contour. Here, a review of the record does not show any evidence of guarding as a result of the Veteran's back disability. The Veteran has complained of muscle spasms in his back. However, having reviewed the evidence of record, the Board does not believe that such spasms have been of sufficient severity to cause an abnormal spinal contour or abnormal gait. As an initial point, the Veteran has consistently been found to have a normal spinal contour and a normal posture. For example, at the December 2008 VA examination, the examiner concluded that the Veteran did not have any abnormal spinal curvatures. He has also generally been noted to have a normal gait, such as at his VA examinations in 2005 and 2011. At his December 2008 VA examination, Veteran was noted to have a mildly antalgic gait, favoring the right lower extremity, but no muscle spasm was detected. It was also noted at a knee examination in May 2007 that the Veteran's gait was antalgic. However, the examiner observed that the Veteran had right knee instability and the Veteran is separately service connected for his right knee. Given that the Veteran's gait was normal at his most recent examination, that muscle spasms have not been objectively demonstrated, and that the Veteran has right knee instability that is unrelated to his back, the Board finds that the evidence simply does not support the conclusion that the Veteran's service connected back disability has caused an abnormal gait. Additionally, no spinal ankylosis has been shown or alleged and the Veteran's VA examinations have consistently noted that no ankylosis was present in his spine. The regulations also provide that any neurologic impairment should be rated separately and then combined with the orthopedic rating. However, here it has not been shown that the Veteran has any additional neurologic impairment. In fact, the VA examiner in 2011 specifically stated that he was of the opinion that the Veteran did not have any neurologic impairment. This conclusion is supported by the Veteran's treatment records which also fail to identify any neurologic impairment. Additionally, as described above, sensory and motor testing was consistently normal during the course of the Veteran's appeal, supporting the 2011 examiner's conclusion. While the Veteran has reported that his back problems have led to periods of incapacitation, the treatment records do not show sufficient periods of physician prescribed bed rest to warrant a rating in excess of 10 percent. As noted, the Veteran reported having missed no more than 2 days due to incapacitating episodes at his May 2005 VA examination, but prescribed bed rest of at least 2 weeks would be required for a rating in excess of 10 percent. Moreover, at the Veteran's 2011 examination, he denied having experienced any incapacitating episodes in the previous12 months. Hence, an increased rating cannot be provided under the formula for rating intervertebral disc disease. Although the Board notes that the Veteran has indicated that the symptomatology associated with his thoracic spine disability warranted an increased evaluation, the competent medical evidence reflects consideration of the Veteran's complaints of pain, weakness and fatigability by medical professionals. The Veteran is competent to report his symptoms, but the observation of a competent medical professional as it bears upon clinical support for the Veteran-layman's complaints is more probative of the degree of the Veteran's impairment. Accordingly, the Board finds that the criteria for entitlement to a schedular rating greater than 10 percent are not met; and the Veteran's claim is denied. Extraschedular Consideration In addition to the foregoing, the Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's back disability. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. 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"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Veteran's back disability has manifested in arthritis, painful movement, limited range of motion, and neurological impairment. The schedular criteria for rating the thoracolumbar spine disability (General Rating Formula for Diseases and Injuries of the Spine) specifically provide for ratings based on the presence of painful arthritis; limitations of motion of the spine (including due to pain and other orthopedic factors; see 38C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca); other clinical findings such as muscle spasm, guarding, abnormal gait, and abnormal spinal contours; and on the basis of incapacitating episodes. In this case, comparing the Veteran's disability level and symptomatology of the thoracolumbar spine disability to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the schedular rating schedule and the assigned ratings are, therefore, adequate. In the absence of exceptional factors associated with the thoracic spine facet with hypertrophy and degenerative changes, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An initial disability rating in excess of 10 percent for service-connected thoracic spine facet with hypertrophy and degenerative changes is denied. ____________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs