Citation Nr: 1338258 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 12-35 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial rating in excess of 10 percent for myofascial lumbar syndrome. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran had active military service from January 1996 to April 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDINGS OF FACT 1. Prior to October 4, 2010, myofascial lumbar syndrome was characterized by antalgic gait, scoliosis of the lumbar spine and spasm of the thoracic paraspinal and lumbar paraspinal muscles; there is no objective evidence of incoordination, weakness of the lumbar spine, lack of endurance, ankylosis or incapacitating episodes having total duration of at least two weeks in a twelve-month period. 2. Since October 4, 2010, myofascial lumbar syndrome is characterized by forward flexion of greater than 60 degrees and a combined range of motion of the thoracolumbar spine greater than 120 degrees; there is no convincing evidence of scoliosis, spasm, abnormal gait, incoordination, weakness of the lumbar spine, lack of endurance, ankylosis or incapacitating episodes having total duration of at least two weeks in a twelve-month period. CONCLUSIONS OF LAW 1. Prior to October 4, 2010, the criteria for an initial evaluation of 20 percent, and no more, for myofascial lumbar syndrome have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.10, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012). 2. Since October 4, 2010, the criteria for an initial evaluation greater than 10 percent for myofascial lumbar syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.10, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008); see also Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). There has been no allegation of such error in this case. In any event, the Veteran received notification prior to the initial AOJ decision through a notice letter dated June 2007. The content of this notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, and was told that she needed to provide the names of the persons, agency, or company who had additional records to help decide his claim. She was also informed that VA would attempt to determine what additional information was needed to process her claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103 (2012). VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All other post-service treatment records and reports identified by the Veteran have also been obtained. The appellant has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded two VA examinations for her myofascial lumbar syndrome on appeal. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board finds the October 2012 and October 2010 VA examinations are adequate for the purposes of the evaluating the Veteran's myofascial lumbar syndrome, as both involved a review of the Veteran's pertinent medical history as well as a clinical examination of the Veteran, and provided a review of relevant symptomatology related to the disability on appeal. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Merits Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The Veteran's service-connected myofascial lumbar syndrome is currently evaluated at 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). 1) 10 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; 2) 20 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; 3) 30 percent-Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; 4) 40 percent-Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; 5) 50 percent-Unfavorable ankylosis of the entire thoracolumbar spine; and 6) 100 percent-Unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 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. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. In addition, intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 10 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent disability rating is awarded for disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent evaluation is in order. Finally, a maximum schedular rating of 60 percent is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. As noted above, the Veteran's myofascial lumbar syndrome has been initially evaluated as 10 percent disabling. Having considered the evidence of record, the Board finds an initial evaluation in excess of 10 percent is not warranted. In this regard, the Veteran's myofascial lumbar syndrome is manifested by subjective complaints of pain and objective evidence of some limitation of motion. See October 2012 VA Examination Report; January 2010 Treatment Record of Dr. J.M. For the period before October 4, 2010, the Veteran is entitled to an initial rating of 20 percent for her myofascial lumbar syndrome. The Veteran submitted to private treatment from Dr. J.M. in March 2010. Dr. J.M. noted that the Veteran exhibited an antalgic gait and scoliosis of the lumbar spine. March 2010 Treatment Record of Dr. J.M. Dr. J.M. also specified that the Veteran presented with spasm of the thoracic paraspinal and lumbar paraspinal muscles. Id. Later, in September 2010, the Veteran again was treated by Dr. J.M. The Veteran again exhibited an antalgic gait and scoliosis of the lumbar spine. September 2010 Treatment Record of Dr. J.M. At that time, the Veteran also presented with spasm of the thoracic paraspinal and lumbar paraspinal muscles. Id. The Board acknowledges the range of motion testing performed by Dr. J.M. in March 2010. The results of that testing were: "extension (to 12 degrees), flexion (to 25 degrees), left lateral bending (to 10 degrees), right lateral bending (to 12 degrees), left rotation (to 5 degrees), and right rotation (to 5 degrees)." March 2010 Treatment Record of Dr. J.M. Nonetheless, the Board finds this range of motion testing inadequate. Dr. J.M. failed to note the Veteran's complaints of pain on motion and did not indicate objective evidence of painful motion. Dr J.M. further made no specific finding as to the degree of range-of-motion lost due to pain on use. Thus, it is unclear from those results at what point the Veteran experienced painful motion. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court found similar examination findings to be inadequate because a VA examiner did not explicitly report "whether and at what point during the range of motion the appellant experienced any limitation of motion that was specifically attributable to pain." The Court stressed that such a finding is important in providing a "clear picture of the nature of the veteran's disability and the extent to which pain is disabling," so as to "allow the Board to ensure that the disabling effects of pain are properly considered when evaluating any functional loss due to pain that is attributable to the veteran's disability." Id. As such, the Board finds that because those results do not specify at which point the Veteran experienced pain on range-of-motion testing, those results are inadequate for the purpose of rating the Veteran's myofascial lumbar syndrome. Applying the General Ratings Formula to the Veteran's symptomatology before October 4, 2010, a 20 percent rating is warranted for that period. As discussed above, range of motion testing completed in March 2010 is not adequate for rating purposes. Thus, the Veteran's range of motion with respect to her thoracolumbar spine is unknown for this period. Further, there is no evidence of ankylosis of the lumbar spine or of the entire spine. There is, however, medical evidence that the Veteran exhibited an antalgic gait and scoliosis of the lumbar spine and also displayed spasms. September 2010 Treatment Record of Dr. J.M; March 2010 Treatment Record of Dr. J.M. The Board acknowledges the Veteran's complaints of pain pertaining to her low back. However, prior to October 4, 2010, the objective evidence of record does not indicate such pain limits the Veteran's functional range of motion of the lumbar spine at all, as such, does not serve as a basis for an increased initial evaluation for orthopedic manifestations of myofascial lumbar syndrome. See Mitchell, 25 Vet. App. 32 ("pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system."). As discussed above, Dr. J.M. did not indicate the Veteran's manifestations of pain upon range-of-motion testing. Further, the Board has also considered whether the Veteran is entitled to an increased evaluation under the schedular criteria for intervertebral disc syndrome. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. However, a higher evaluation is not warranted because there is no competent medical evidence of any incapacitating episodes, defined by regulation as physician prescribed bed rest, at any point prior to October 4, 2010. Further, in this case there is no competent evidence of record to indicate a separate evaluation is warranted for any neurological manifestation of the Veteran's myofascial lumbar syndrome. See id. As such, given that the Veteran exhibited an antalgic gait and scoliosis during the period before October, 4, 2010, and also showed spasm of thoracic paraspinal and lumbar paraspinal muscles, a 20 percent rating is warranted for that period. See 38 C.F.R. § 4.71a, Diagnostic Code 5237. For the period from October 4, 2010, the findings from the VA examination on that date reflect that the Veteran did not have scoliosis, nor did she experience spasms. See October 2010 VA Examination Report. The examiner observed the Veteran as having a normal gait. Id. The examiner relied upon x-rays of the Veteran taken in October 2007 to reach the conclusion that she did not have scoliosis. Nonetheless, in contrast with the findings of Dr. J.M., made in September 2010, the examiner concluded that the Veteran did not have scoliosis, an abnormal gait, nor did the Veteran experience spasms. The Veteran claims that the October 2010 VA examination was flawed as the examiner relied on x-rays taken in October 2007. See November 2010 Notice of Disagreement. Specifically, the Veteran claims that the x-rays were inconclusive because of "poor collimation" and the Veteran's weight. Id. However, the Veteran appears to be referring to x-rays taken in June 2005. The report accompanying those x-rays states "[d]ue to the patient's underlying obesity and poor collimation, individual structures are not well seen." June 2005 Radiologic Examination Report. The examiner, however, based his conclusions on x-rays taken in October 2007, not the June 2005 x-rays. See October 2010 VA Examination Report. The report of the Veteran's October 2007 VA examination makes clear that x-rays of the Veteran's lumbosacral spine and thoracic spine were taken in October 2007, in addition to the other x-rays, which were taken in June 2005. See October 2007 VA Examination Report. The October 2010 examiner explicitly stated that he relied upon the October 2007 x-rays. He did not state that he relied upon the June 2005 x-rays, on which individual structures were not well seen. The Veteran does not actually seem to take issue with the x-rays taken in October 2007, those which the October 2010 examiner relied upon. The Veteran again submitted to a VA examination in October 2012. With regard to range of motion testing, the October 2012 VA examination noted the Veteran as exhibiting forward flexion of the thoracolumbar spine initially to 70 degrees and also noted there was no objective evidence of painful motion on initial flexion. The examination further noted that upon repetitive-use testing, the Veteran exhibited forward flexion of the thoracolumbar spine to 70 degrees. Initial extension to 20 degrees was noted and there was no objective evidence of painful motion on initial extension. Upon repetitive-use testing, the Veteran exhibited extension to 20 degrees. Finally, the Veteran exhibited an initial combined range of motion to 210 degrees and a combined range of motion to 205 degrees on repetitive-use testing. Applying the range of motion measurements to the General Ratings Formula, the results of the October 2012 VA examination demonstrate the Veteran is not entitled to an evaluation greater than 10 percent for his low back disability based upon limitation of motion. See 38 C.F.R. § 4.71a. In this regard, the Board notes there is no probative medical evidence of forward flexion of the lumbar spine limited to 60 degrees or less during at any point during the appeal period. Id. There is also no probative medical evidence that the Veteran's combined range of motion of her thoracolumbar spine was less than 120 degrees at any point during the rating period. See id. In addition, there is no objective evidence of ankylosis of the lumbar spine or of the entire spine. Id. The Board recognizes the Veteran's complaints of pain throughout the range of motion of his lumbar spine. However, the objective evidence of record indicates such pain does not limit the Veteran's functional range of motion of the lumbar spine to less than 60 degrees as discussed above and, as such, does not serve as a basis for an evaluation in excess of 10 percent for orthopedic manifestations of degenerative disc disease. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) ("pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system."). The Board has also considered whether the Veteran is entitled to an increased evaluation under the schedular criteria for intervertebral disc syndrome. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. However, a higher evaluation is not warranted because there is no competent medical evidence of any incapacitating episodes, defined by regulation as physician prescribed bed rest, at any point in the rating period. Further, in this case there is no competent evidence of record to indicate a separate evaluation is warranted for any neurological manifestation of the Veteran's myofascial lumbar syndrome. See id. Thus, a rating in excess of 10 percent from October 4, 2010, for the Veteran's myofascial lumbar syndrome is not warranted. That is because at no point since that date has the competent evidence shown that the Veteran exhibited an abnormal gait, spasms, or scoliosis. Nor, as discussed above, did the Veteran exhibit any symptoms that would warrant a rating in excess of 10 percent for the period from October 4, 2010. For the entire rating period, the Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds that the severity of the Veteran's service-connected cervical spine and lumbar spine disabilities is fully contemplated by the rating criteria. There is nothing exceptional about this service-connected disability. The degree of disability exhibited by the Veteran's myofascial lumbar syndrome is fully contemplated by the rating schedule. Thus, the Board finds that the threshold test is not met for referral for extra-schedular consideration. 38 C.F.R. § 4.16(b); Thun v. Peake, 22 Vet. App. 111 (2008). The Veteran has also argued, in her Notice of Disagreement, that she was diagnosed with degenerative disc disorder (DDD) and should have been service connected for that disability, apparently instead of myofascial lumbar syndrome, for which she is service connected. The Veteran has been diagnosed with DDD. See March 2010 Private Treatment Record of Dr. J.M. The Veteran was also diagnosed with myofascial lumbar syndrome twice. See October 2012 VA Examination Report; October 2010 VA Examination Report. Both the October 2012 and October 2010 VA examiners ruled out a diagnosis of DDD for the Veteran. Id. However, regardless of the diagnosis, the Board has considered the Veteran's symptoms in evaluating the severity of the service-connected low back disability. As discussed above, the criteria for higher ratings than those assigned are not met. ORDER An initial increased rating of 20 percent for myofascial lumbar syndrome prior to October 4, 2010, is granted, subject to the laws and regulations governing the award of monetary benefits. An initial increased rating for myofascial lumbar syndrome from October 4, 2010, currently rated at 10 percent, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs