Citation Nr: 1343084 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 12-08 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a higher initial rating in excess of 10 percent for degenerative changes of the lumbar spine (a back disability). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD J. Ragheb, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active military service from July 1986 to December 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2011 rating decision (RD) of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Veteran initially requested a hearing before the Board. See April 2012 VA Form 9. However, the Veteran later informed VA that he no longer wished to have a hearing. See March 2013 VA Form 9. Accordingly, the Board finds that the hearing request is withdrawn. See 38 C.F.R. § 20.704(d) (2013). In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. Throughout the rating period, the Veteran's back disability has manifest by degenerative changes of the lumbar spine, with forward flexion of 90 degrees and combined range of motion of the lumbar spine of 240 degrees, including due to chronic pain and stiffness. 2. There are some muscle spasms and some indication of abnormal gait and flat lordosis; however, the muscle spasms are not severe enough to cause the abnormal gait or flat lordosis. 3. There were no incapacitating episodes, or neurological manifestations of the back disability for which the Veteran is not already separately compensated. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for degenerative changes of the lumbar spine have not been met throughout the appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242 and 5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to initial adjudication. A September 2011 letter explained the evidence necessary to substantiate the claim for service connection, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. The September 2011 notice letter also informed the Veteran as to how disability ratings and effective dates are assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Concerning the appeal for higher initial ratings, because it is an appeal that arises from the Veteran's disagreement with the initial rating following the grant of service connection for the back disability, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the US Court Appeals for Veterans Claims (the Court) have held that, once service connection is granted, the claim is substantiated and, therefore, additional notice is not required and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007). With regard to the duty to assist, the Veteran's service treatment records and pertinent post-service treatment records have been secured, including the additional VA treatment records identified in the March 2013 VA Form 9. The RO arranged for a VA examination in October 2011. This examination is adequate for purposes of rating the Veteran's back disability. The examiner reviewed the Veteran's medical history and complaints, made clinical observations, and rendered an opinion regarding the severity of the Veteran's back disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). As such, VA has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield, 444 F.3d at 1328. Therefore, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Disability Rating Criteria Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating 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. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When a veteran is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). The Court has emphasized that when assigning a disability rating it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disability should reflect functional limitation due to pain which is supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. See 38 C.F.R. § 4.40. The factors of disability reside in reductions of their normal excursion of movements in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. See 38 C.F.R. § 4.45. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or particular 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to this issue. Back Disability Initial Rating Analysis Service connection for a back disability was granted by the RO in a December 2011 rating decision that assigned a 10 percent initial rating under the provisions of Diagnostic Code (DC) 5242, which gave rise to this appeal. The Veteran disagreed with the initial rating assigned, contending that he experienced constant back pain. In the substantive appeal, the Veteran wrote that he believed the X-ray did not show all that was wrong with his back. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Rating Formula). 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. The General Rating Formula provides a 10 percent disability rating for forward flexion of the lumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range-of-motion of the lumbar 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. A 20 percent rating is provided for forward flexion of the lumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the lumbar 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 disability rating is provided for forward flexion of the lumbar spine 30 degrees or less, or favorable ankylosis of the entire lumbar spine while a 50 percent disability rating is assigned for unfavorable ankylosis of the entire lumbar spine. Finally, a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. 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) provides that, for VA compensation purposes, normal forward flexion of the lumbar 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 lumbar 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) provides that, 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) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar 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. 38 C.F.R. § 4.71a. The diagnostic codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also DC 5003); 5243 Intervertebral disc syndrome. The IVDS Rating Formula provides a 10 percent disability rating for IVDS 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 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. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. After a full review of the clinical and lay evidence, the Board concludes that throughout the appeal period an initial rating in excess of 10 percent is not warranted for the back disability. See 38 C.F.R. § 4.71a, General Rating Formula. Throughout the rating period, the Veteran's back disability has manifest by degenerative changes of the lumbar spine, with forward flexion of 90 degrees and combined range of motion of the lumbar spine of 240 degrees, including due to chronic pain and stiffness. While there are some muscle spasms and some indication of abnormal gait and flat lordosis, the muscle spasms are not severe enough to cause the abnormal gait or flat lordosis. Additionally, there were no incapacitating episodes, or neurological manifestations of the back disability for which the Veteran is not already separately compensated. Turning to the record, in October 2011, the Veteran underwent a VA examination of the lumbar spine. The examiner noted the Veteran's history of back pain resulting from the service-connected right knee disability, and the Veteran reported that he had increased pain with walking uphill and with lifting heavy objects. The Veteran also indicated that prolonged sitting or standing caused stiffness and pain. Upon physical examination in October 2011, the Veteran had full range of motion with 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of lateral flexion bilaterally, and 30 degrees of rotation bilaterally with a combined range of motion of the lumbar spine of 240 degrees. There was no objective evidence of painful motion throughout all the range-of-motion testing and no additional limitation in range of motion of the lumbar spine following repetitive-use testing. See 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, supra. The VA examiner also found that the Veteran had tenderness of paravertebral musculature L2-L5, which was more prominent on the right side. The Veteran had no guarding or muscle spasm of the lumbar spine and no IVDS. The examiner diagnosed the Veteran with degenerative changes of the lumbar spine and found that the Veteran had antalgic gait with no indication of ankylosis, functional loss, or impairment of the lumbar spine. An October 2011 private treatment note from Lake Country Chiropractic indicates that, when examined, the Veteran's active lumbar range of motion was within normal limits; spasms and pain were noted at L5/S1. VA treatment records during this period on appeal reflect continued complaints of back pain treated with chiropractic therapy, physical therapy, and pain medication. An August 2011 VA treatment record notes that the Veteran had free range of motion with no tenderness or deformity of the back. A March 2012 physical therapy record indicates that the Veteran had full extension with mild local upper lumbar paraspinal tightness reported. Extension was minimal with no pain while some pressure was noted at end range centrally over the lumbar spine junction. Gait was smooth and coordinated and posture assessment showed generally a flat lumbar lordosis. Palpation along the lumbar paraspinals did not provoke spasms at that point. The Board notes that, at the March 2012 physical therapy record also reported side bending bilaterally was limited by abdomen 50 percent with ipsilateral pain in both directions and rotation bilaterally was limited by abdomen 50 percent with ipsilateral pain in both directions. Such findings of limitation of motion are not probative regarding rating the spine disability because the examiner explained that the limitations were not a result of the back disability; rather, the specific 50 percent limitations were attributed by the examiner to a non-service-related etiology. See 38 C.F.R. § 4.14 (2013) (providing that the use of manifestations not resulting from service-connected disease or injury is to be avoided for rating the service-connected disability). An April 2012 physical therapy note indicates that the Veteran's spinal ranges of motion were within normal limits with no active spasms. A December 2012 VA chiropractic note indicates that the Veteran had full ranges of motion with moderate pain in the left low back with flexion and lateral flexion to the left low back. The Veteran rated his low back pain at 6/10 and noted that his pain is worse when he sits for a prolonged period of time. The October 2011 VA examination indicates that the Veteran 90 degrees of forward flexion and a combined range of motion of 240 degrees with no ankylosis of the lumbar spine. Private and VA treatment records indicate that throughout the appeal period, the Veteran had full range of motion with mild or moderate pain at times and no incapacitating episodes. At no point during the appeal period did the Veteran have forward flexion of the lumbar spine no greater than 60 degrees, or a combined range of motion of the lumbar spine no greater than 120. The 10 percent rating under the General Rating Formula contemplates muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; any muscle spasms noted in the record were never found to be severe enough to cause the Veteran's antalgic gait or flat lordosis. See also October 2011 VA examination report. The Board has considered and weighed the Veteran's complaints of chronic low back pain and stiffness especially when walking uphill or after prolonged sitting. However, the evidence of record shows that the functional range of motion is not limited due to pain, fatigue, or incoordination sufficient to serve as a basis for a higher initial rating at any point during the appeal period. 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.") For these reasons, the preponderance of the evidence weighs against a finding that the Veteran's back disability more closely approximates a 20 percent rating under DC 5242 throughout the appeal period. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-7. With respect to IVDS, the evidence shows that there were no incapacitating episodes sufficient to warrant a higher initial rating. The evidence demonstrates that the Veteran has not been prescribed bed rest by a physician during the appeal period as a result of an incapacitating episode relating to the lumbar spine. As such, an initial rating in excess of 10 percent is not warranted based on IVDS. 38 C.F.R. § 4.71a, DC 5243. In the December 2011 rating decision, the RO assigned a 10 percent rating under the provisions of DC 8520 for radiculopathy of the right lower extremity associated with degenerative changes of the lumbar spine. This is a separately rated disability, which is not before the Board on appeal. Extraschedular Considerations The Board also has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, as a threshold, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. The Board finds that, in this case, the impairment and symptoms attributable to the Veteran's back disability are fully contemplated by the schedular rating criteria. The Veteran's back disability has manifested in degenerative changes to the spine and painful movement, as well as pain and stiffness after prolonged periods of sitting down. The schedular criteria for rating the back disability specifically provide for ratings based on the presence of painful motion, whether or not such pain radiates; limitations of motion of the spine including due to pain and other orthopedic factors (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca); other clinical findings such as muscle spasm, guarding, abnormal gait, and abnormal spinal contours; and on the basis of incapacitating episodes. In this case, comparing the Veteran's disability level and symptomatology of the back to the rating schedule, the degree of disability of the back throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. 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). Accordingly, the preponderance of the evidence is against a higher initial rating than 10 percent for the back disability at any point during the appeal period. The benefit of the doubt rule does not apply, and a higher initial rating is not warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. ORDER An initial disability rating in excess of 10 percent for the back disability is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs