Citation Nr: 1337969 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-07 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an increased rating in excess of 40 percent for residuals, lumbosacral strain with severe limitation of motion and minimal degenerative changes. REPRESENTATION Appellant represented by: Marine Corps League ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from December 1990 to July 1994. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran's back disability has been manifest by limitation of motion of his thoracolumbar spine to no less than 40 degrees forward flexion and no less than 10 degrees extension, left and right lateral flexion, and right and left lateral rotation with pain but no additional functional loss. CONCLUSION OF LAW The criteria for a disability rating in excess of 40 percent for the Veteran's service-connected residuals, lumbosacral strain with severe limitation of motion and minimal degenerative changes have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2013). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The following discussion addresses the Veteran's level of disability from the time the increased rating claim was filed in October 2008. Francisco, 7 Vet. App. 55; Hart, 21 Vet. App. 505. Under the general rating formula for diseases and injuries of the spine set forth in Diagnostic Codes (DC) 5235-5242, a 40 percent evaluation is warranted where either forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or where favorable ankylosis of the entire thoracolumbar spine is shown. A 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent evaluation is warranted where there is unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Note 2. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a, Note 2. In general, the rating criteria take into account pain and other symptoms. In the case of spinal disabilities, pain is often the primary factor limiting motion and is almost always present when there is muscle spasm. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurological sections of the rating schedule. Schedule for Rating Disabilities; The Spine, 68 Fed. Reg. 51,454 (Aug. 27, 2003) (See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243). However, the Board must consider 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 when deciding whether a higher disability evaluation is warranted. 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. A part that becomes painful on use must be regarded as seriously disabled. Id.; see also DeLuca. Private physical therapy records show that the Veteran began a four-week physical therapy regimen in October 2008. At his initial evaluation his range of motion was measured to 40 degrees flexion, 15 degrees extension, 10 degrees right lateral flexion, and 5 degrees left lateral flexion. His right and left rotation were noted to be 75 percent restricted. The Veteran was afforded a VA examination in December 2008. The examiner found no spinal ankylosis. The Veteran's flexion of his thoraco-lumbar spine was measured to 40 degrees and extension, right and left lateral flexion, and right and left lateral rotation all to 10 degrees. The examiner found pain on motion but no additional limitation of range of motion after repetition. The Veteran had a negative Lasegue's sign and Waddell's test. In June 2012 the Veteran called the VA reporting his back hurt so bad that he was in bed for four days but that it was feeling better. He requested physical therapy. The Veteran was afforded another VA examination in February 2013. The Veteran reported increased pain in his back since the December 2008 VA examination. He reported his pain increases with certain movement and sitting for less than 20 minutes. He reported relief of back pain by less than half with use of a Jacuzzi hot tub and heating bad. He said steroid injections in 2008 and 2009 did not result in significant relief. He reported occasional cramping and spasms in his low back without radiation of pain. He did not report flare-ups that impact the function of his back. On range of motion testing, the Veteran's forward flexion was measured to 55 degrees, extension and right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, right lateral rotation to 30 degrees or greater, and left lateral rotation to 20 degrees or greater. There was no evidence of painful motion and no change in range of motion on repetitive use. The examiner did find the Veteran had less movement than normal after repetitive use. The examiner also noted that the Veteran was able to independently transfer on and off the exam table, don and doff his socks, and take off and put on his jeans, which requires about 90 percent lumbar flexion yet he showed only about 50 percent on range of motion testing. The examiner stated that the Veteran's effort was submaximal and also noted there was no spasm-end feel in his paravertebrals bilaterally. The examiner also opined that the Veteran appeared to sit comfortably throughout the exam with occasional weight shifting. The Veteran's back was tender to palpation along his bilateral low back paravertebrals. He had guarding and/or muscle spasm but not severe enough to result in abnormal gait or spinal contour. Muscle strength was normal but the examiner found that the Veteran had muscle atrophy in the right quadriceps and right gastrocnemius not related to the Veteran's service-connected back condition. Reflex and sensory examinations were normal. The examiner found no radicular pain or any other signs or symptoms due to radiculopathy. The examiner found no intervertebral disc syndrome but noted imaging showed arthritis and disc disease. The Board finds that a preponderance of the evidence is against the claim for a higher disability rating. For the next higher rating, 50 percent, the Veteran would have to demonstrate unfavorable ankylosis of the entire thoracolumbar spine. Ankylosis is defined as the absence of movement. See Augustine v. Principi, 18 Vet. App. 505, 506 (2004)(Defining ankylosis as the "immobility and consolidation of a joint", citing Dorland's Illustrated Medical Dictionary 86 (28th ed.1994). However, on VA examinations and in physical therapy, the Veteran has consistently demonstrated reduced but present range of motion in all directions. At his December 2008 VA examination he demonstrated a combined range of motion in his thoracolumbar spine of 90 degrees, with flexion to 40 degrees and motion to 10 degrees on extension and right and left flexion and rotation. By his February 2013 VA examination his range of motion had increased to a combined range of motion of 145 degrees with flexion to 55 degrees. The Board recognizes the Veteran's complaints of pain, but notes that 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. At both of his VA examinations the Veteran was found to have no additional loss of range of motion with repetition. The only additional functional loss noted on his February 2013 VA examination was less movement than usual after repetition. The Board finds that even considering the DeLuca factors, the Veteran's back condition does not more closely approximate the criteria for a 50 percent rating, which would require unfavorable ankylosis of the entire thoracolumbar spine. It is important to note that the Board is not basing its decision solely on the range of motion testing done at the Veteran's VA examination. The Board has carefully considered the Veteran's statements discussing the limitations on his daily activities. However, without problems associated with the Veteran's back disability there would be no basis for the current evaluation, which by definition must cause the Veteran some limitation in his activities. Even taking into consideration the Veteran's statements, the evidence does not support a higher rating. Further, the evidence does not support that the Veteran has any neurological abnormalities associated with his back disability. Specifically, the February 2013 VA examiner found the Veteran had no radicular pain or any other signs or symptoms due to radiculopathy and normal reflex and sensory tests. Thus, a separate rating is not warranted for associated neurological abnormalities. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The Veteran is also not entitled to a higher rating under the criteria for evaluating intervertebral disc syndrome (IVDS) under DC 5243. See 38 C.F.R. § 4.71a, Note (6). Under DC 5243, intervertebral disc syndrome (pre-operatively or post-operatively) is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Id. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 60 percent rating is warranted if incapacitating episodes have a total duration of at least six weeks. See 38 C.F.R. § 4.71a (DC 5243). An incapacitating episode is defined as 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. See 38 C.F.R. § 4.71a Note (1). The February 2013 VA examiner specifically found the Veteran does not have IVDS. Further, the evidence does not suggest, and the Veteran does not contend, that he has ever been prescribed bed rest and treatment by a physician. Thus, the Board finds that the Veteran has not had any incapacitating episodes within the meaning of DC 5243. Accordingly, a higher rating based on the alternative ratings formula for intervertebral disc syndrome is not warranted. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the claim for an increased disability rating in excess of 40 percent for residuals, lumbosacral strain with severe limitation of motion and minimal degenerative changes, must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that 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. 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 adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made 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"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's service-connected back disability that would render the schedular criteria inadequate. The Veteran's symptoms, including reduced range of motion and pain, are contemplated in the rating assigned. As such, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. Moreover, even if it were argued that the schedular rating criteria were inadequate, the Board finds no reason to refer the case to the Compensation and Pension Service to consider whether an extra-schedular rating is warranted. In this case, there is no evidence of any hospitalization associated with the Veteran's back disability. Although the Veteran is currently unemployed, the Board notes that he is in receipt of individual unemployability benefits effective June 23, 2009. The manifestations of the Veteran's disability are considered by the schedular rating. Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). Duties to Notify and Assist 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in November 2008. In the letter, the RO informed the Veteran of what evidence was required to substantiate his claim and of the Veteran's and VA's respective duties for obtaining evidence. In the letter the RO also provided notice with regard to how VA assigns disability ratings and effective dates. Thus, the duty to notify has been satisfied. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's VA treatment records, and private treatment records identified by the Veteran. In March 2009 the Veteran requested the VA proceed with adjudicating his claim despite not having obtained records from Mid Missouri Medical Consultants. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded a VA medical examination in December 2008 and February 2013. The examiners, medical professionals, obtained an accurate history, listened to the Veteran's assertions, and performed the necessary tests. The examiners provided the Board with sufficient information to rate the Veteran's disability. Therefore, the Board finds that the examinations are adequate and contain sufficient information to decide the issue on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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); see also Quartuccio, 16 Vet. App. 183. ORDER A disability rating in excess of 40 percent for residuals, lumbosacral strain with severe limitation of motion and minimal degenerative changes, is denied. ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs