Citation Nr: 1339318 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 08-15 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial compensable rating for degenerative disc disease and degenerative joint disease of the cervical spine. 2. Entitlement to an initial compensable rating for degenerative disc disease and degenerative joint disease of the lumbosacral spine. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Castillo, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1981 to August 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2007 of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In May 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the Veteran's file. This case was previously before the Board in September 2011, when it was remanded for further development to afford the Veteran a VA examination. The Veteran cancelled the scheduled examination and did not attempt to reschedule. Therefore, the Board finds that there has been substantial compliance with the remand instructions and no further action to ensure compliance with the remand directive is required. FINDINGS OF FACT 1. Throughout the appeal period degenerative disc disease (DDD) and degenerative joint disease (DJD) of the cervical spine has manifested by forward flexion to 45 degrees and a combined range of motion of 340 degrees with no evidence of additional functional loss; there is no evidence of guarding, abnormal gait, abnormal spinal contour or objective neurological abnormality; or, incapacitating episodes due to intervertebral disc syndrome (IVDS) of at least one week, but less than two weeks that required bed rest prescribed by a physician in the past 12 months. 2. Throughout the appeal period DDD and DJD of the lumbosacral spine has manifested by forward flexion to 90 degrees and a combined range of motion of 240 degrees with no evidence of additional functional loss; there is no evidence of guarding, abnormal gait, abnormal spinal contour or objective neurological abnormality; or, IVDS of at least one week, but less than two weeks that required bed rest prescribed by a physician in the past 12 months. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for DDD and DJD of the cervical spine not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242 and 5243 (2013). 2. The criteria for an initial compensable rating for DDD and DJD of the lumbosacral spine not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242 and 5243 (2013). VCAA Notice and Assistance The appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. The Veteran has not indicated and the record does not contain evidence that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). A VA examination was conducted in May 2007. The Veteran has argued that the range of motion testing was inadequate because it measured passive range of motion. The VA examination report, however, indicates that the examiner conducted active and passive range of motion testing. The Board finds that the May 2007 VA examination report is adequate in order to rate the Veteran's cervical and lumbosacral spine disabilities as it was provided by an appropriate medical professional and based on a thorough review of the claim file, interview with the Veteran, and physical examination. Moreover, the VA examiner provided clear conclusions with supporting data, and a reasoned medical explanation connecting the two. Thus, the record contains a sound medical opinion upon which a decision may be based. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In October 2011, a VA examination was scheduled to ascertain the current severity of the Veteran's cervical and lumbosacral spine disabilities. The Veteran cancelled the examination and failed to reschedule. As a result, the Veteran's claims will be decided on the evidence of records. 38 C.F.R. § 3.655(b) (when a claimant fails to report for an examination in conjunction with an original compensation claim, as here, the claim should rated based on the evidence of record). There is no indication in the record that any additional evidence, relevant to the claims is available. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS General Rating Principles Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. § 4.7. Where, as here, the question for consideration is propriety of the initial evaluation assigned, evaluation of all the medical evidence since the grant of service connection is required. Additionally, consideration of the appropriateness of "staged rating" must be given. Fenderson v. West, 12 Vet. App. 119, 126 (1999). A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss due to pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran undertaking the motion is a factor. Weakness is also an important. 38 C.F.R. § 4.40. When evaluating the joints, factors to consider include less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention 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. Rating the Spine The Veteran is currently in receipt of noncompensable ratings for DDD and DJD of the cervical spine and DDD and DJD of the lumbosacral spine under Diagnostic Code 5243. A disability under Diagnostic Code 5243 is rated either under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes or the General Rating Formula for Diseases and Injuries of the Spine, whichever results in the higher rating. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes a 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. As per Note (1) of the DC, for purposes of evaluations 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. 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, 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. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Evidence On VA examination in May 2007, the Veteran complained of localized low back pain. He denied radicular pain in the lower extremities and physician prescribed bed rest within the past 12 months. X-rays showed mild DDD and DJD of the cervical and lumbosacral spine segments. On testing range of motion of the cervical spine, flexion was to 45 degrees, without pain; extension was to 45 degrees, without pain; right and left lateral flexion were both to 45 degrees; and right and left lateral rotation were both to 80 degrees, without pain. There were no flare-ups, and no additional limitations following repetitive use. There was no effect of incoordination, fatigue, weakness, or lack of endurance on his spinal function. The diagnosis was mild DDD and DJD of the cervical spine. On testing range of motion of the lumbosacral spine, flexion was to 90 degrees, without pain; extension was to 30 degrees, without pain; and right and left lateral rotation and flexion were all to 30 degrees, without pain. There were no flare-ups, and no additional limitations following repetitive use. There was no effect of incoordination, fatigue, weakness, or lack of endurance on his spinal function. The diagnosis was mild DDD and DJD of the lumbosacral spine. Motor strength was 5/5 in all muscle groups in the upper and lower extremities. Sensory examination was normal. Pin prick in the upper and lower extremities were normal. There was no evidence of bladder incontinence. On physical examination by VA in September 2007, the Veteran complained of low back pain. He denied numbness. On physical examination, the VA physician noted decreased range of motion of the cervical and lumbosacral spine segments with spasm. The VA physician did not express the limitation of motion in degrees. Motor strength was 5/5, and sensory examination was normal. VA EMG nerve conduction studies in July 2008 showed possible radiculopathy of in the lower extremities. Private medical records show that the Veteran reported pain and limitation of motion associated with the cervical and lumbosacral segments of the spine. Analysis The Veteran contends that his service-connected disabilities of the cervical and lumbosacral spine cause pain, radiculopathy, limitation of motion, and incapacitating episodes. Cervical Spine Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes a 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. Throughout the appeal period, there is no evidence of physician prescribed bed rest. While the Veteran is competent describe symptoms, the Board places greater weight on the examination findings than the Veteran's subjective complaints. And IVDS requires evidence of physician prescribed bed rest. 38 C.F.R. § 4.71a, DC 5243, note 1. In summary, the criteria for a compensable rating higher under for IVDS have not been met. The Board also considered a higher rating under the General Rating Formula for Diseases and Injuries of the Spine. Forward flexion to 45 degrees with no additional functional loss does not more nearly approximate or equate to forward flexion greater than 30 degrees but less than 40 degrees, and a combined rating of 340 degrees (45+45+45+45+80+80=340) does not more nearly approximate or equate to a combined rating of not greater than 335 degrees, applying 38 C.F.R. §§ 4.40, 4.45, 4.59, and repetitive motion. And there is no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. While the Veteran reports radiculopathy and VA EMG nerve conduction studies in July 2008 showed possible radiculopathy of in the lower extremities, the objective medical evidence of record shows no neurological abnormalities. Also with arthritis or periarticular pathology, painful motion is factor to be considered. 38 C.F.R. § 4.59. While the Veteran has described pain, the pain does not result in functional loss. See Mitchell v. Shineski, 25 Vet. App. 32, 43 (2011) (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40 ). To this extent, the Board places greater weight on the objective findings of the examination than the Veteran's subjective complaints of pain. 38 C.F.R. §§ 4.40 , 4.45; 4.59. For these reasons, the criteria for a compensable rating under the General Rating Formula for Diseases and Injuries of the Spine have not been met. The Board has considered "staged" ratings, but concludes that the evidence does not show that cervical spine disability met the criteria for a higher rating at any time since the claim was filed in May 2006. As the preponderance of the evidence is against the claim for an initial compensable rating for DDD and DJD of the cervical spine, the benefit-of-the-doubt standard does not apply. 38 U.S.C.A. § 5107(b). Lumbosacral Spine The Veteran is currently in receipt of a noncompensable rating for DDD and DJD of the lumbosacral spine under Diagnostic Code 5243. A disability under Diagnostic Code 5243 is rated either under the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes a 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. Throughout the appeal period, there is no evidence of physician prescribed bed rest. While the Veteran is competent describe symptoms, the Board places greater weight on the examination findings than the Veteran's subjective complaints. And IVDS requires evidence of physician prescribed bed rest. 38 C.F.R. § 4.71a, DC 5243, note 1. In summary, the criteria for a compensable rating higher under for IVDS have not been met. The Board also considered a higher rating under the General Rating Formula for Diseases and Injuries of the Spine. Forward flexion to 90 degrees with no additional functional loss does not more nearly approximate or equate to forward flexion greater than 60 degrees but less than 85 degrees, and a combined rating of 240 degrees (90+30+30+30+ 30+30=240) does not more nearly approximate or equate to a combined rating of not greater than 235 degrees, applying 38 C.F.R. §§ 4.40, 4.45, 4.59, and repetitive motion. While the Veteran reports radiculopathy and VA EMG nerve conduction studies in July 2008 showed possible radiculopathy of in the lower extremities, the objective medical evidence of record shows no neurological abnormalities. Also with arthritis or periarticular pathology, painful motion is factor to be considered. 38 C.F.R. § 4.59. While the Veteran has described pain, the pain does not result in functional loss. See Mitchell v. Shineski, 25 Vet. App. 32, 43 (2011) (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40 ). To this extent, the Board places greater weight on the objective findings of the examination than the Veteran's subjective complaints of pain. 38 C.F.R. §§ 4.40, 4.45; 4.59. For these reasons, the criteria for a compensable rating under the General Rating Formula for Diseases and Injuries of the Spine have not been met. The Board has considered "staged" ratings, but concludes that the evidence does not show that lumbosacral spine disability met the criteria for a higher rating at any time since the claim was filed in May 2006. As the preponderance of the evidence is against the claim for an initial compensable rating for DDD and DJD of the lumbosacral spine, the benefit-of-the-doubt standard does not apply. 38 U.S.C.A. § 5107(b). Extraschedular Consideration Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is encompassed by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria under DC 5242 and 5243 reasonably describe the disability levels and the Veteran's symptomatology, including pain, functional loss, limitation of motion, and IVDS. In other words, the Veteran does not experience any symptomatology not already encompassed by the Rating Schedule. Therefore referral for extraschedular consideration for the service-connected cervical and lumbosacral spine disabilities is not required under 38 C.F.R. § 3.321(b)(1). A Total Disability Rating for Compensation based on Individual Unemployability The Veteran is currently employed, the Veteran did not raise, and the record does not reasonably raise the claim for a total disability rating for compensation based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). ORDER An initial compensable rating for degenerative disc disease and degenerative joint disease of the cervical spine is denied. An initial compensable rating for degenerative disc disease and degenerative joint disease of the lumbosacral spine is denied. ____________________________________________ George E. Guido, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs