Citation Nr: 1341035 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 12-24 979 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a disability rating in excess of 10 percent for a lumbar strain, status post history of L2 compression fracture (back disability). REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD P. M. Johnson, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from December 2002 to July 2004. This matter comes before the Board of Veterans' Appeals (Board) from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In that decision, the RO continued a 10 percent evaluation of his service-connected lumbar strain, status post history of L2 compression fracture. This decision also continued a 0 percent evaluation of his service-connected hepatitis C. The Veteran appealed these claims through a timely Notice of Disagreement and subsequent VA Form 9, which stated, that the Veteran "was asking for a 10 percent rating on the hepatitis C" that he acquired in-service. On September 10 2013, a Decision Review Officer (DRO) decision granted a 10 percent rating from July 5, 2011 for the Veteran's service-connected Hepatitis C. This decision is considered a full grant of benefits sought, and as such this matter is no longer before the Board. The Veteran's entire claims file, to include the portion contained in the electronic "Virtual VA" system, was reviewed. It appears that the issue of service connection for an acquired psychiatric disorder, secondary to a service-connected back disorder or serviced-connected hepatitis C, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action, if needed. FINDINGS OF FACT 1. The evidence of record does not establish that the Veteran's low back injury manifests with forward flexion greater than 30 degrees but not greater than 60 degrees, combined range of motion not greater than 120 degrees, or muscle spasm or guarding severe enough to result in abnormal gait or spinal contour. 2. The evidence of record does not establish that the Veteran's low back injury manifests with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for a low back disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.10, 4.40, 4.59, 4.71a, Diagnostic Codes 5237 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In determining the disability evaluation, VA has a duty to consider all possible regulations which may be potentially applicable based upon the assertions and issues raised in the record. After such a consideration, VA must explain to the Veteran the reasons and bases utilized in the government's decision. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). For claims for an increase that do not rise out of an initial grant of service connection, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Hart v. Mansfield, 21 Vet. App 505 (2007). In the instant case, there is no evidence that the disability has significantly changed and a uniform evaluation is warranted. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. The Veteran contends, in essence, that his service-connected lumbar strain, status post history of L2 compression fracture is of greater severity than what is contemplated by the currently-assigned 10 percent rating. He has stated that he works a Detective/Deputy Sherriff and that his physical limitations affect his ability to perform tasks associated with his job. He has noted that his low back disability causes him problems with his daily life, including physical restrictions and emotional difficulties. Upon receipt of the Veteran's allegations regarding his worsening back condition, a VA examination was afforded in August 2011. The Veteran reported recurrent flare-ups of low back pain of moderate severity. The flare-ups occur every 2-3 weeks and last approximately 1-2 days. These occurrences, which limited the Veteran's motion, could be aggravated by long walks and prolonged sitting, and relieved by rest. The examiner reported forward flexion to 90 degrees. Extension left lateral flexion, right lateral flexion, left lateral rotation, and right lateral rotation were reported to 30 degrees, providing evidence against this claim. The examiner noted that there was objective evidence of pain on active range of motion and pain following repetitive motion. Muscle spasm, stiffness, and antalgic gait were found upon examination, but it was the examiner's opinion that the muscle spasm, tenderness, and guarding were not severe enough to be responsible for the antalgic gait. The Veteran was diagnosed with lumbar strain, post L2 compression fracture with mild diffuse degenerative disc disease. This was noted to cause increased tardiness and absenteeism on the Veteran's usual occupation and resulted in decreased mobility and pain during occupational activities. Regarding entitlement to a higher rating for the back disability specifically, the Board notes that the Veteran is currently evaluated under 38 CFR DC 5237 that requires analysis of Intervertebral Disc Syndrome (IVDS) based upon its relation to DC 5243. IVDS can be evaluated in one of two ways. It can either be evaluated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or according to the Formula for Rating IVDS Based on Incapacitating Episodes (Incapacitating Episodes Formula). When rating according to the General Formula, any associated objective neurologic abnormalities are rated separately under their respective diagnostic codes. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). The existing 10 percent rating is assigned when forward flexion of the thoracolumbar (thoracic and lumbar) spine is greater than 60 degrees but not greater than 85 degrees, or the combined range of motion for the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or there is vertebral body fracture with loss of 50 percent more in height. 38 C.F.R. § 4.71a, Diagnostic Code 5243, General Formula. A higher 20 percent rating requires forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion not greater than 120 degrees. Id. A rating of 20 percent can also be attained if muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour are present. Id. A 40 percent evaluation is warranted under the General Formula when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is warranted where there is unfavorable ankylosis of the entire spine (meaning when considering the adjacent cervical segment as well). See id. 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. See id., Note (5). The General Formula applies for rating purposes with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. Any associated neurologic abnormalities must be rated separately. Id., at Note (1). For the purposes of rating, 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. Id., at Note (2). Thus, the normal combined range of motion for the thoracolumbar spine is 240 degrees. Id. The Veteran's low back disability can also be rated using the Incapacitating Episodes Formula. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. This formula allows for a rating of 20 percent if there have been incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. For the purposes of this formula, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). In the current case, the August 2011 VA examiner found that the Veteran had forward flexion of 90 degrees and combined range of motion of 240 degrees. When compared to the general formula, a rating of 20 percent requires forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion not greater than 120 degrees. As forward flexion of 90 degrees and combined range of motion 240 degrees exceed 60 degrees and 120 degrees respectively, a higher schedular evaluation is not justified under these criteria. Nevertheless, a rating of 20 percent can also be attained under the general formula if muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour are present. While the Veteran has reported experiencing muscle spasms related to his low back and the examiner found evidence of an abnormal gait, it was the examiner's opinion that the muscle spasm, tenderness, and guarding was not severe enough to be responsible for the antalgic gait. Moreover, there is no evidence of record that supports a finding that the Veteran's muscle spasm or guarding is severe enough to cause this antalgic gait. Thus, there is no evidence of record that would warrant a disability rating of 20 percent under the general formula. Under the incapacitating episodes formula, a rating of 20 percent requires that there have been episodes having a total duration of at least two weeks but not more than 4 weeks of physician prescribed bed rest during the past twelve months. None of the evidence of record has indicated that the Veteran has been prescribed two or more weeks of bed rest, and therefore, there is no evidence of record to indicate that a 20% finding of disability is warranted under the incapacitating episodes formula. Further, no evidence has been provided to the Board that the Veteran meets the criteria required for any of the schedular ratings higher than 20% under either formula. Therefore, under the schedular criteria for either formula, the current evidence does not warrant a higher rating evaluation for the Veteran's low back disability. The Board notes its duty to consider factors such as pain on use, weakness, fatigability, incoordination, and additional limitation of motion during repeated use when coming to an assessment as to the level of severity of a service-connected orthopedic disability. See DeLuca at 202. In this case, the Veteran reported pain that would increase and decrease depending on his activity level and the range of motion required for the activity. Accordingly, the reported pain on use is fully considered in the assignment of the 10 percent rating. See DeLuca. Additionally, the Board notes that the pain exhibited during movement is not so unique, in itself, as to take the service-connected disability picture outside of the norm. Indeed, as noted, the pain is fully contemplated by the rating schedule, and thus, the claim will not be remanded for a referral to the Director of VA's Compensation Service for consideration of an extraschedular rating for his back disability. See Thun v. Peake, 22 Vet. App. 111(2008). In this regard, it is important for the Veteran to understand that a 10% evaluation will, by definition, cause the Veteran problems, including with his work or, for example, as noted by the Veteran, long walks. If it did not, there would be no basis for the 10% rating, let alone greater Therefore, since there is no evidence that Veteran's low back disability meets the 20 percent rating criteria (or higher) under either formula, and as the evidence of record does not warrant a grant of extraschedular benefits, the Veteran's claim for a disability rating in excess of 10 percent for a lumbar strain, status post history of L2 compression fracture is denied. The best medical evidence in this case not only does not support the claim, it provides highly probative evidence against his claim. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim for a higher rating for a lumbar strain, status post history of L2 compression fracture. 38 U.S.C.A. § 5107(b); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and 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). 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this case, the Veteran was provided with notice in July 2011. He was informed of what evidence VA would provide and what evidence he should supply in support of his claim. The Veteran was specifically informed as to how disability ratings are assigned based on the severity of the service-connected disability and how service connection is established. He was also informed as to how effective dates are assigned. See Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). It is pertinent to note that the Veteran is represented by the Tennessee Department of Veterans' Affairs, and that organization is presumed to have knowledge of what is necessary to substantiate a claim for a higher disability rating for a low back disability. Neither the Veteran nor his representative has pled prejudicial error with respect to the content or timing of VCAA notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claim, the Board finds that all necessary assistance has been provided in this case. The evidence includes all relevant service treatment records and pertinent post-service medical records that address complaints of increased difficulty with pain and activities of daily living due to a low back disability. Furthermore, the Veteran has been afforded a comprehensive VA medical examination, which addressed his complaints related to his low back. The August 2011 examination provides a current description of the disability picture. As the Veteran has not alleged or provided evidence of a worsening condition, it is adequate for rating purposes. In that regard, the Board is satisfied that it has the most current assessment of the disability picture for a low back condition, and there is no need to obtain another VA examination addressing the severity of the Veteran's condition. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Indeed, as noted in detail above, the Veteran simply contends that his pain and physical limitations should be deemed severe enough to warrant a higher rating, not that it has grown in severity since 2011 or that the examiner did not address his contentions regarding his condition. If the Veteran's low back condition becomes worse, he is encouraged to file a claim for an increase. Accordingly, there is no indication of any additional relevant evidence that has not been obtained. There is no duty to provide another examination or a medical opinion. See 38 C.F.R. §§ 3.326, 3.327 (2013). ORDER An evaluation in excess of 10 percent for lumbar strain, status post history of L2 compression fracture is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs