Citation Nr: 1340944 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 10-16 975 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased evaluation for lumbosacral strain (low back disability), currently rated 20 percent disabling. 2. Entitlement to a compensable evaluation for injury, right thumb, avulsed fragment, proximal phalanx, status post ulnar collateral ligament repair with traumatic arthritis (right thumb disability). ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from September 1984 to January 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In February 2010 the Veteran requested to have a Board hearing via video-conference. The Veteran did not appear at the scheduled hearing and did not request that the hearing be rescheduled. Therefore, the appeal will be processed as though the hearing request had been withdrawn. 38 C.F.R. § 20.702(d) (2013). FINDINGS OF FACT 1. The Veteran's low back disability is not productive of any incapacitating episodes during the past 12 months; favorable ankylosis; or limitation of thoracolumbar forward flexion to 30 degrees or less, even considering any additional limitation of motion from pain and repetitive motion. 2. The right thumb disability is manifested by no gap between the right thumb pad and the finger with the thumb attempting to oppose any finger, even considering any additional limitation of motion from pain and repetitive motion. CONCLUSIONS OF LAW 1. Throughout the course of this appeal, the criteria for a disability rating in excess of 20 percent for low back disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5235-5243 (2013). 2. Throughout the course of this appeal, the criteria for a compensable disability rating for right thumb disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, DC 5299-5228 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Criteria A December 1999 rating decision granted service connection for low back and right thumb disabilities, and assigned a 20 percent disability rating for the low back disability and a noncompensable disability rating for the right thumb disability, both effective January 9, 1999. A March 2003 rating decision continued the disability ratings already assigned. The Veteran did not file a notice of disagreement and no additional evidence pertinent to the issues was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2013); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the March 2003 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1105 (2013). The Veteran filed the increased rating claim on appeal in February 2008. The Veteran's low back disability is currently rated under DC 5237 and the right thumb disability is currently rated under DC 5299-5228. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). If a Veteran appeals a rating decision seeking an increased rating for a disability for which service connection has already been established, such as here, then the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). More recently the Court has held that even in a claim for an increase in the level of an already service-connected disability, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus in deciding the claims below, the Board has considered whether different ratings may be warranted for different time periods based on the evidence of record. Low Back Disability Criteria & Analysis Under VA's Rating Schedule, disabilities of the spine, are to be evaluated 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 § 4.25. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2013). For disease and injuries of the spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243 (2013). A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Id. Unfavorable ankylosis of the entire spine warrants a 100 percent evaluation. Id. Note (1) 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): 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. 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 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. (See also 38 C.F.R. § 4.71a, Plate V). 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 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 (0 degrees) always represents favorable ankylosis. Intervertebral Disc Syndrome (IVDS) is rated under Diagnostic Code 5243, based upon the frequency of incapacitating episodes. 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. Under DC 5243, a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. The Veteran seeks a disability rating in excess of 20 percent for the lumbar spine disability. A review of the evidence and pertinent clinical findings does not show symptoms warranting a rating in excess of 20 percent. Specifically, the evidence as discussed above does not show forward flexion of the thoracolumbar spine limited to 30 degrees or less, even after consideration of pain, weakness and other symptoms described in DeLuca. See 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2013). In April 2008, forward flexion was zero to 75 degrees, with pain at approximately 60 degrees. Further, in March 2012, flexion was to 80 degrees with objective evidence of painful motion beginning at 70 degrees. Because the findings do not reflect forward flexion of the thoracolumbar spine limited to 30 degrees or less, an evaluation in excess of 20 percent is not warranted. The Veteran reported ankylosis of the entire thoracolumbar spine. However, the VA examination findings reflect that there was no ankylosis of the lumbar spine. See 38 C.F.R. § 4.71a, DC 5237 (2013). Although limited, the Veteran has had movement of the spine throughout the appeal. At the April 2008 VA examination, forward flexion was zero to 75 degrees, with pain at approximately 60 degrees, extension, and left and right lateral bending and rotation were zero to 30 degrees, with no increased pain or decreased range of motion from the baseline after 30 repetitions. At the March 2012 examination, flexion was to 80 degrees with objective evidence of painful motion beginning at 70 degrees. Extension was to 20 degrees with no objective evidence of painful motion. Right and left lateral flexion and rotation were to 30 degrees or greater with no objective evidence of painful motion. In light of the above, the findings do not reflect favorable ankylosis of the spine. In reaching these determinations, the Board acknowledges that pain on motion must be taken into account when rating a disability based on limitation of motion, even where there is compensable loss as a result of limitation of motion. DeLuca v. Brown, 8 Vet. App. at 205-06. To receive disability compensation, however, for painful motion, that pain must result in functional loss, i.e., limitation in the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination or endurance." See 38 C.F.R. § 4.40; see also Mitchell v. Shinseki, 25 Vet. App. 32, 38. In other words, "although pain may cause functional loss, pain itself does not constitute functional loss" that is compensable for VA benefit purposes. Mitchell, 25 Vet. App. at 37. The Board finds that functional loss due to pain affecting some aspect of the normal working movements of the body, has been considered and does not provide a basis for higher ratings. Moreover, the Board finds that functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination has been considered and 38 C.F.R. § 4.40, 4.45 and 4.59 do not provide a basis for a higher rating. See DeLuca, 8 Vet. App. at 204-07. The Veteran had no functional loss or functional impairment of the thoracolumbar spine at the March 2012 VA examination. The Veteran was able to perform repetitive-use testing with three repetitions, and flexion was to 80 degrees, extension to 20 degrees, and right and left lateral flexion and rotation were to 30 degrees or greater. Additionally, the Veteran's complaints of muscle spasms and guarding are already contemplated in the currently assigned 20 percent rating. The assignment of a rating in excess of 20 percent based on the aforementioned is not warranted. In addition, the Board acknowledges that the Veteran treats his low back disability with pain medications. Here, given the objective findings of the range of motion studies, the Board concludes that the 20 percent rating most closely approximates the Veteran's functional loss due to limitation of motion. Cf. Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) (holding that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria). The evidence weighs against entitlement to an evaluation in excess of 20 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The March 2012 VA examiner noted that the Veteran did not have intervertebral disc syndrome. The Veteran also denied being prescribed bed rest in the previous 12 months in April 2008. Thus, evaluation in excess of 20 percent in this regard is not warranted. Associated Neurologic Abnormality The competent evidence does not reflect any objective neurologic abnormalities associated with the low back disability, so as to warrant the assignment of a separate evaluation. In December 2008, the Veteran reported constant spasm and weakness of the lower extremities. However, in April 2008, the Veteran denied radiation of the pain down his back or legs. Moreover, in March 2012, the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy, or any other neurologic abnormalities or findings related to the low back disability, such as bowel or bladder problems or pathologic reflexes. The Veteran has no neurological abnormality of the lower extremities. 38 C.F.R. §§ 4.115, 4.124a, Diagnostic Code 8520 (2013). Scars Finally, the Board has considered a separate rating for low back scars. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (holding that evaluations for distinct disabilities resulting from the same injury can be combined so long as the symptomatology for one condition is not "duplicative or overlapping with the symptomatology" of the other condition). The March 2012 VA examiner noted that the Veteran did not have any scars related to the low back disability. As such, the Board finds that a separate disability rating for scars is not warranted. See generally, 38 C.F.R. § 4.118 (2013). Based on the evidence and analysis above, the criteria for a schedular rating higher than 20 percent for the service-connected low back disability are not met. Further, because the criteria for a rating higher than 20 percent were not met during any distinct period during the course of the appeal, the assignment of "staged ratings" is not warranted. Hart, 21 Vet. App. 505. Right Thumb Disability Criteria & Analysis As noted above, the Veteran's right thumb disability is currently rated under DC 5299-5228. When an unlisted condition is encountered, it is to be rated under a closely-related disease or injury similar in function and anatomical location. 38 C.F.R. § 4.20. When an unlisted disease is rated by analogy, the code is built by using the part of the rating schedule most closely related to the disability for the first 2 digits and "99" for the last 2 digits. See 38 C.F.R. § 4.27. DC 5228 provides a zero percent (non-compensable) rating for limitation of motion of the thumb with a gap of less than 1 inch (2.5 centimeters (cm)) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. A minimum 10 percent rating is assigned for a gap of 1-2 inches (2.5 to 5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. These ratings are assigned for both the major (dominant) and minor (non-dominant) hands. See 38 C.F.R. § 4.71a, DC 5228. A review of the pertinent evidence and rating criteria establishes that entitlement to a compensable rating for this disability is not warranted. Physical examination of the right hand in April 2008 revealed the tip of the right thumb was able to oppose all four fingers of the right hand and the March 2012 examiner noted that there was no gap between the thumb pad and the fingers. In light of the above, the findings do not reflect a gap between the right thumb pad and the finger with the thumb attempting to oppose any finger. The Board has considered the Veteran's right thumb disability under DC 5010, for degenerative arthritis. See 38 C.F.R. § 4.71a, DCs 5003, 5010 (2013). However, a separate 10 percent rating may not be granted under DC 5010 as the Veteran has not been diagnosed with degenerative arthritis. The Board has also considered whether a higher rating may be granted based upon painful motion, as indicated by 38 C.F.R. § 4.59 and Burton v. Shinseki, 25 Vet. App. 1 (2011). Although the Veteran reported flare ups and pain on movement in December 2008, range of motion was not painful upon in April 2008 or March 2012. Moreover, the March 2012 VA examiner noted that the Veteran did not have any functional loss or functional impairment of the thumb. There was no limitation of motion or evidence of painful motion for the thumb. The Veteran was able to perform repetitive-use testing with three repetitions, and there was no additional limitation of motion for any fingers post-test. The Veteran did not have additional limitation in range of motion of the thumb following repetitive-use testing. Thus, there is no showing of any functional impairment which would warrant a higher rating for the Veteran's complaints of pain, and the provisions of 38 C.F.R. § 4.59 and Burton are not for application in this case. The Board has considered the Veteran's right thumb disability under all other potentially applicable diagnostic codes; however, the Veteran's disability only involves his thumb and the evidence shows his disability is not manifested by ankylosis. Therefore, DCs 5224, which evaluates ankylosis of the thumb, and DCs 5229 and 5230, which evaluate limitation of motion of the index, long, ring, and little fingers, are not for application in this case. Finally, the Board has considered whether a separate rating for the Veteran's right thumb scar is warranted. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (holding that evaluations for distinct disabilities resulting from the same injury can be combined so long as the symptomatology for one condition is not "duplicative or overlapping with the symptomatology" of the other condition). The April 2008 VA examination report indicates that there was a 3 centimeter scar. The March 2012 VA examiner noted that the Veteran did not have any scars that were painful and/or unstable, and the total area of all related scars was not greater than 39 square centimeters (6 square inches). There is no medical evidence that the Veteran is entitled to separate ratings for unstable or painful scars under DC 7804. See 38 C.F.R. § 4.118 (2013). Moreover, the Veteran's scar is not greater than 929 square centimeters and does not cover more than 5 percent of his body. See id., DC's 7802, 7805, and 7806 (2013). Accordingly, the Board finds that a separate disability rating for the Veteran's scar is not warranted. Based on the evidence and analysis above, the criteria for a compensable schedular rating for the service-connected right thumb disability are not met. Further, because the criteria for a compensable rating were not met during any distinct period during the course of the appeal, the assignment of "staged ratings" is not warranted. Hart, 21 Vet. App. 505. Extraschedular Consideration & TDIU In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The rating criteria contemplate the Veteran's low back and right thumb disability claims decided here. The Veteran has not reported unusual or exceptional features associated with his low back and right thumb disabilities and the discrete manifestations of the low back and right thumb disabilities, i.e., limitation of motion of the lumbar spine and right thumb are contemplated by the rating criteria. The Veteran's lumbar spine is not productive of ankylosis or flexion to 30 degrees or less. Evidence of physician prescribed bed rest is not present either. The Veteran's thumb presents no gap between the thumb pad and the fingers and range of motion is not limited by pain. The rating criteria are therefore adequate to evaluate the disabilities, and referral for consideration of extraschedular rating is not warranted. Even if the Board were to find that step one of Thun had been satisfied, extraschedular referral would still not be warranted because the Board also finds that Thun step two is not satisfied. See Johnson v. Shinseki, 26 Vet. App. 237, 247 (2013) (en banc) (error in Thun step one analysis is harmless were Board makes an adequate finding that Thun step two is not satisfied). The Veteran has not been hospitalized for the low back or right thumb conditions. As to employment, in April 2008, the Veteran reported that the back disability occasionally affected his work as a wheel and brake inspector because it affected his ability to lift heavy objects, and that the right thumb was not affected by working. The Veteran's low back symptoms do not cause marked interference with employment. Therefore, the Veteran's low back and right thumb disabilities do not present an exceptional disability picture with related factors such as marked interference with employment or frequent hospitalization. 38 C.F.R. § 3.321(b)(1). Finally, the Court has held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). The Veteran has not asserted, and review of the file does not show, that he is rendered unemployable by his service-connected low back or right thumb disabilities on appeal. The Board accordingly finds that a claim for a TDIU is not raised by the rating issue before the Board. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in April 2008 and September 2008. The letters were presented prior to initial adjudication. The claimant was provided the opportunity to present pertinent evidence. The record contains records of medical treatment received from VA and private treatment providers. Additionally, attempts were made to obtain records from the Social Security Administration (SSA) regarding any decision involving SSA benefits awarded to the Veteran. In an August 2012 Memorandum to File, the RO noted its specific efforts to obtain records from the SSA, and made a formal finding that no SSA records were available for review. The duty to assist includes the duty to provide a medical examination or obtain a medical opinion when such is necessary to make a decision on the claim, as defined by law. VA examined the medical history of the Veteran's service-connected low back and right thumb disabilities for compensation purposes addressing the claim. In this regard, the VA examination reports contain the pertinent clinical findings relevant to the pertinent diagnostic codes. The VA examiners recorded the Veteran's history and complaints, the examination reports set forth detailed examination findings in a manner that allows for informed appellate review, and the examiners offered the necessary findings. The VA examination reports are sufficient and adequate for rating purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). VA has fulfilled its duty to assist the claimant by obtaining identified and available evidence needed to substantiate the claims. The Veteran has not identified, and the record does not otherwise indicate, that any additional evidence exists that has not been obtained and would be necessary for a fair adjudication of the claims. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claims. 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 v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to an evaluation in excess of 20 percent for low back disability is denied. Entitlement to a compensable evaluation for right thumb disability is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs