Citation Nr: 1343008 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 10-29 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for a lumbosacral strain. 2. Entitlement to a compensable initial rating for migraine headaches. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from April 2006 to March 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that the Veteran submitted a notice of disagreement to the April 2009 rating decision that included disagreement with the disability ratings awarded for her service-connected back, right and left hips, abdomen scar, migraine headaches, and status post cholecystectomy. The RO later issued a statement of the case in June 2010 covering each of those issues. Subsequently, in her VA Form 9, the Veteran only appealed the rating decisions for her service-connected back and migraine headaches. Therefore, the other issues listed in the statement of the case are not currently before the Board. The issue of entitlement to a compensable initial rating for migraine headaches is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT Forward flexion of the Veteran's lumbar spine during the pendency of the claim has not been limited to 30 degrees or less, nor has there been favorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 20 percent for a lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice 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. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In rating cases, a claimant must be provided with information pertaining to the assignment of disability ratings (to include the criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by a letter dated in January 2009. The content of the notice letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). With respect to the Dingess requirements, the letter included notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Accordingly, the duty to notify has been fulfilled. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this instance, the claims file contains the Veteran's service treatment records and the Veteran's own assertions in support of her claim. The Board has reviewed the file for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain; therefore appellate review may proceed without prejudicing her. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition, the Veteran was afforded a contracted VA examination in January 2009. The Board finds that the examination obtained in this case was adequate, as it provided findings relevant to the criteria for rating the Veteran's service-connected disabilities. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The claims file was reviewed by the examiner. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. II. Legal Criteria, Factual Background, and Analysis A. Criteria of Disability Evaluations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The pendency of the issue in this instance dates to the original rating decision granting service connection. Id. Consequently, the Board will evaluate the Veteran's disability as a claim for a higher evaluation of the original award. B. Rating Criteria for Back Strain The Veteran's service-connected disability is currently rated as 20 percent disabling under Diagnostic Code 5237. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula are made 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. Under the General Rating Formula, a 10 percent evaluation is for application with forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. 38 C.F.R. § 4.71a , DC 5237 (2012). A 20 percent evaluation is for application with 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. A 40 percent evaluation is for application when forward flexion of the thoracolumbar spine is 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is for application when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is for application when there is unfavorable ankylosis of the entire spine. Note (1), which follows the rating criteria, provides for the evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. As mentioned above, there are also alternative criteria for rating intervertebral disc syndrome based upon incapacitating episodes. Under the alternative criteria, a 10 percent rating is assigned when the Veteran has incapacitating episodes of intervertebral disc syndrome having a total duration of at least one, but less than two weeks during the previous 12 month period. A 20 percent rating is assigned when the Veteran has incapacitating episodes of intervertebral disc syndrome having a total duration of at least two, but less than four weeks during the previous 12 month period. A 40 percent rating is assigned when the Veteran has incapacitating episodes of intervertebral disc syndrome having a total duration of at least four, but less than six weeks during the previous 12 month period. A 60 percent rating is assigned when the Veteran has incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks during the previous 12 month period. Id. In evaluating musculoskeletal system disabilities based on limitation of motion, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to a healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Additionally, the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995). C. Analysis The Veteran underwent a contracted VA examination in January 2009. She reported that she experiences stiffness, numbness and pain in the back which occurs ten times a day, lasting for one hour to several days. The pain is described as going up and down her left side of the body and is "crushing, aching, burning and sharp with a severity of 10/10." The condition is made worse by physical activity and is relieved somewhat by rest. She reported being able to "function to a small degree with medication." Her functional impairment is described as being unable to "lift anything over ten pounds to include [her] children." Upon examination, the Veteran was found to have normal posture and gait. The examiner reported that the thoracolumbar spine examination revealed "considerable limitation in the range of motion of the lumbosacral region. Otherwise, examination of the thoracolumbar spine does not reveal any evidence of radiating pain on movement. There is muscle spasm and tenderness in the lumbosacral muscles. The straight leg raise test is positive on the right and left. The left is more severe, limited to 20 degrees and the right to 40 degrees. No fixed position of the lumbar spine is identified." The range of motion was limited as follows: flexion 0-40 degrees; extension 0-10 degrees; right lateral flexion 0-20 degrees; left lateral flexion 0-30 degrees; right rotation 0-30 degrees; and left rotation 0-30 degrees. The examiner further noted that "[p]ain, weakness, lack of endurance, fatigue or incoordination does not impact further on the range of motion after repetitive use. Inspection of the spine reveals that the position of the head and curvature of the spine are within normal limits. There is symmetry in appearance and spinal motion." The examiner also found that review "of the history and physical examination does not identify an intervertebral disc syndrome as evident by bowel or bladder dysfunction." X-rays were taken of the back. The examiner reported that multiple views of the "thoracic spine show good alignment throughout with disc spaces preserved and vertebral body height maintained." The impression of the thoracic spine was negative. The diagnosis given by the examiner was "lumbosacral strain with limitation in range of motion." The Board notes that there are no treatment records in the claims file concerning the Veteran's back since service. The Board also considered the lay evidence of record. Lay evidence is competent to report symptoms because this requires only personal knowledge as it comes to him or her through his or her senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, lay evidence is not competent to provide a medical diagnosis and medical nexus opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In her notice of disagreement dated in June 2009, the Veteran asserted that she experiences back pain 4 to 5 times a week and that the pain is worse than childbirth. She also alleged that she has trouble lifting her children up and playing with them. She also explained that she sometimes needs help getting in and out of the shower. Her statements describing her symptoms are considered to be competent evidence. King v. Shinseki, 700 F .3d 1339, 1344 (Fed.Cir.2012) (quoting Buchanan v. Nicholson, 451 F.3d 1331,1335 (Fed.Cir.2006)). These statements, however, must be viewed in conjunction with the rating criteria. In assessing the competent medical evidence and the Veteran's lay statements, the Board notes that the description of her pain in the notice of disagreement, did not differ from her description provided to the examiner. The Veteran's allegations, therefore, were considered in the medical opinion provided. Based on the competent medical evidence, the Veteran is not entitled to a rating in excess of 20 percent. The Veteran's low back disability is manifested by forward flexion of 40 degrees and a combined range of motion of 160 degrees. To attain a higher rating, forward flexion would need to be limited to 30 degrees or less or the Veteran would need to suffer from favorable ankylosis of the entire thoracolumbar spine, neither of which apply to the Veteran. Nor have there been incapacitating episodes due to intervertebral disc syndrome. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim for an initial evaluation in excess of 20 percent for lumbosacral strain, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Other Considerations The evidence in this case does not show that the Veteran has manifestations of her service-connected disability that are not contemplated by the rating criteria. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). A total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). A claim for TDIU has not been raised in the record. ORDER Entitlement to an initial disability rating in excess of 20 percent for a lumbosacral strain is denied. REMAND Regarding the claim for an increased rating for migraine headaches, the issue is remanded for additional development. The Veteran was afforded a contracted VA examination in January 2009. The Veteran reported getting "headaches with a frequency of twice a week. Each last[ing] for about two hours." The examiner noted that the Veteran reported that she "takes no specific treatment for the condition." The Veteran explained that she must stay in bed until she obtains relief. She also stated that during the month before the examination, she missed work about four times. The examiner diagnosed the Veteran with migraine headaches. The Board notes that there are no treatment records for migraine headaches in the claims file. However, in her notice of disagreement dated in June 2009, the Veteran reported that she experiences migraine headaches 2-3 times a week and that she must stay in bed with the lights out when they occur. She also reported having to take "up to five medications a day." In order to adjudicate this appeal, all treatment records regarding the Veteran's migraine headaches must be sought. Based on her statement, it appears that the Veteran is taking medication for her migraine headaches. In addition, in a statement dated in December 2011, the representative indicated that she received treatment for headaches at the Alfa Clinics in Charlotte North Carolina. To the extent she is receiving treatment and being prescribed medication for her migraine headaches, VA has a duty to assist in attempting to obtain those records whether they are VA or private medical records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Additionally, the Veteran's last VA examination is more than four years old. The Board finds that a more current examination is necessary to properly evaluate the severity of her disability. See Allday v. Brown, 7 Vet. App. 517, 526 (1995). Accordingly, the case is REMANDED for the following action: 1. Obtain the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated the Veteran for migraine headaches. The RO should attempt to obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured and associate them with the claims folder. 2. After completion of the foregoing, schedule an appropriate VA neurology examination to determine the current severity of the Veteran's service-connected migraine headaches. The claims folder must be made available to the examiner for review of the case, and the examination report should include discussion of the Veteran's documented medical history and lay statements. All indicated tests and studies should be performed, and the examiner should review the results of any testing prior to completing the report. A full rationale must be provided for all stated medical opinions. 3. After completion of the above action, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case (SSOC) should be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs