Citation Nr: 1343392 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 10-29 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased evaluation for degenerative disc disease of the thoracolumbar spine, with Tarlov's cyst, to include an evaluation in excess of 10 percent prior to December 6, 2012, and an evaluation in excess of 20 percent as of that date. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from January 1995 to May 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, denying the claim of entitlement to an evaluation in excess of 10 percent for a left sacroiliac joint strain. In a May 2013 rating decision, the Veteran's disability evaluation was increased to 20 percent, effective as of December 6, 2012. The issue was also recharacterized as entitlement to an increased evaluation for degenerative disc disease of the thoracolumbar spine, with Tarlov's cyst (previously rated as left sacroiliac joint strain). Since this grant did not constitute a full grant of the benefits sought on appeal, this claim remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993).Separate disability evaluations were also assigned for sacroiliitis and radiculopathy of the lower extremities, bilaterally. The Veteran was previously scheduled for a Travel Board hearing in October 2013. However, prior to the date of her scheduled hearing, the Veteran notified VA that she wished to cancel her requested hearing. As such, the Board will proceed to adjudicate this issue without a hearing. FINDINGS OF FACT 1. Prior to December 6, 2012, the Veteran's thoracolumbar spine disability was manifested by painful limited motion; it was not manifested by flexion of the thoracolumbar spine to 60 degrees or less, a combined range of thoracolumbar spine motion of 120 degrees or less, muscle spasm or guarding resulting in abnormal gait or spinal contour, or incapacitating episodes due to intervertebral disc syndrome. 2. As of December 6, 2012, the Veteran's thoracolumbar spine disability has been manifested by painful limited motion with a combined range of motion of 110 degrees; it has not been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, favorable or unfavorable ankylosis of the thoracolumbar spine or incapacitating episodes due to intervertebral disc syndrome. CONCLUSION OF LAW The criteria for establishing entitlement to an increased evaluation for a thoracolumbar spine disability, to include an evaluation in excess of 10 percent prior to December 6, 2012, and an evaluation in excess of 20 percent as of December 6, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the Veteran of any information and 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 Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For an increased disability rating claim, VA is required to provide the Veteran with generic notice - that is, the type of evidence needed to substantiate the claim. This includes evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In the present case, notice was provided to the Veteran in May 2009 that informed her of the need to present evidence to demonstrate a worsening in her service-connected disability and the effect that this worsening had on her employment and daily life. She was also provided with notice as to how VA determines the proper disability rating and effective date. All of this information was provided to the Veteran prior to the initial adjudication of her claim. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of her case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting her in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. Also, the Veteran received VA medical examinations in June 2009, September 2010 and December 2012, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. Significantly, neither the Veteran nor her representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist her in the development of the claim. 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). Relevant Laws and Regulations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2013). 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). See also 38 C.F.R. §§ 4.1, 4.2 (2011). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Facts and Analysis The Veteran contends that she is entitled to an increased evaluation for her service-connected thoracolumbar spine disability. For historical purposes, service connection was initially granted for left sacroiliac joint trigger point (claimed as sacroiliitis; mechanical low back pain; tail bone pain; sciatica) in a July 2002 rating decision. A 10 percent rating was assigned under the then existing Diagnostic Code 5294, effective as of May 14, 2002. In March 2009, VA received a claim from the Veteran seeking a higher disability evaluation for her sciatica. In a July 2009 rating decision, a 10 percent rating was continued for a left sacroiliac joint strain, under Diagnostic Code 5237 (amended as of September 26, 2003). A timely notice of disagreement was received from the Veteran in February 2010, but the 10 percent evaluation was continued in a June 2010 statement of the case. The Veteran appealed the assigned rating to the Board in July 2010. In a May 2013 rating decision, the RO increased the Veteran's evaluation for her degenerative disc disease of the thoracolumbar spine, with Tarlov's cyst (previously rated as left sacroiliac joint strain), to 20 percent, effective as of December 6, 2012. Service connection was also granted for sacroiliitis of the thighs and hips, bilaterally, and for sciatic nerve radiculopathy, bilaterally. The Veteran underwent a VA examination of the spine in June 2009. The Veteran described pain in the low back and buttock that may travel into the thigh and calf. This pain occurred once or twice a week and would last for a few hours. The Veteran also endorsed mild stiffness and moderate weakness. The Veteran also reported flare-ups due to cold weather or when getting out of a car. These would last for anywhere from 12 to 24 hours. A cane was used to assist with ambulation. However, it was noted that the Veteran was not really limited in how far or how long she could walk. She denied any numbness, weakness, or bowel or bladder issues, and there had been no periods of hospitalization. Physical examination revealed a normal gait and posture with normal spinal curvatures. Range of motion testing of the thoracolumbar spine revealed forward flexion from 20 degrees to 70 degrees, extension to 30 degrees, bilateral lateral flexion to 30 degrees and bilateral lateral rotation to 30 degrees, for a combined range of motion of 220 degrees. There was evidence of painful motion, but no fatigue, weakness, lack of endurance or incoordination. The examiner noted that there was no ankylosis, as well as no scoliosis, reversed lordosis or abnormal kyphosis. Neurological evaluation revealed normal motor function, sensory function and reflexes in the lower extremities, bilaterally. Finally, the examiner noted that there had not been any incapacitating episodes during the previous 12 months. The Veteran was afforded an additional VA examination of the spine in September 2010. The Veteran denied a history of hospitalization of flare-ups, as well as symptoms such as numbness, paresthesias or urinary or bowel impairment. There was also no history of fatigue, weakness or spasm, but there was a dull ache with stiffness. The Veteran also endorsed a radiating pain that was sharp and burning. There were no incapacitating episodes of spine disease and no devices or aids were required to assist with ambulation. The Veteran was able to walk more than 1/4 of a mile but less than 1 mile. Physical examination revealed a normal posture and gait with no abnormal spinal curvatures. There was also no ankylosis or evidence of muscle spasms. Thoracolumbar range of motion was flexion to 90 degrees, extension to 20 degrees, bilateral lateral flexion to 30 degrees and bilateral lateral rotation to 30 degrees, for a combined thoracolumbar range of motion of 230 degrees. There was objective evidence of pain following repetitive motion, but there was no further limitation of motion following repetition. A neurological evaluation revealed normal reflexes with no sensory deficit. A motor examination was also normal with no evidence of abnormal muscle tone or muscle atrophy. Lasegue's sign was positive, however. The Veteran was diagnosed with sciatic pain of uncertain origin in the L5-S1 dermatome. This disability resulted in occupational impairment due to decreased mobility, problems with lifting and carrying and pain. However, the Veteran was still employed full-time. It also had moderate effects on any physical activity and driving. A magnetic resonance image (MRI) was taken in November 2010. This revealed mild degeneration of the L4-5 intervertebral disc without significant central canal compromise or neural foraminal narrowing. There was also a small Tarlov's cyst expanding the left S2 foramen with mild displacement of the S2 nerve root. The clinical significance of this finding was noted to be uncertain. The Veteran was most recently afforded a VA examination of the spine in December 2012. The Veteran was noted to be suffering from degenerative disc disease with Tarlov's cyst and sacroiliitis. The Veteran described an increase in pain and range of motion limitations. The Veteran reported flare-ups with prolonged activities of standing, walking, running, heavy lifting and bending down. Range of motion testing revealed forward flexion to 55 degrees (with pain at 50 degrees), extension to 5 degrees (with pain at 5 degrees), bilateral lateral flexion to 10 degrees (with pain at 10 degrees) and bilateral lateral rotation to 15 degrees (with pain at 15 degrees), for a combined thoracolumbar range of motion of 110 degrees. The Veteran was able to perform repetitive motion testing without further reduction in range of motion. There was functional loss of the spine due to pain on movement and interferences with sitting, standing and/or weight-bearing. Neurological testing was performed as well, revealing normal muscle strength, reflexes and sensation. There was evidence of mild radicular pain into the lower extremities, bilaterally, however. (Service connection has since been established for radiculopathy of the lower extremities). The examiner also noted that the Veteran did not suffer from intervertebral disc syndrome of the lumbar spine and that the Veteran did not use any assistive devices to assist with locomotion. The Board will first address the Veteran's contention that she is entitled to an evaluation in excess of 10 percent prior to December 6, 2012. The Veteran's thoracolumbar spine disability is presently rated under Diagnostic Code 5237. This code is to be evaluated under the general rating formula for diseases and injuries of the spine. 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: A 10 percent evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, 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 height. 38 C.F.R. § 4.71a. A higher rating of 20 percent is assigned 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. Id. According to the June 2009 VA examination report, the Veteran was capable of forward flexion to 70 degrees. She had a combined total rating of 220 degrees as well. The September 2010 VA examination report also reflects forward flexion to 90 degrees with a combined range of motion of 230 degrees. There is no evidence of muscle spasm or guarding resulting in an abnormal gait or spinal contour either, as both examination reports reflect a normal gait with no abnormal spinal curvatures. The record contains no other evidence of thoracolumbar spine symptomatology prior to the December 2012 VA examination report. As such, the preponderance of the evidence of record demonstrates that an evaluation in excess of 10 percent is not warranted at any time prior to December 6, 2012. Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also 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. The factors of disability affecting joints are reduction of their normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. While the June 2009 and September 2010 examination reports do reflect pain on motion, the September 2010 examiner specifically noted that there was no additional loss of motion due to pain upon repetition. The June 2009 examiner also found no evidence of fatigue, weakness, lack of endurance or incoordination. Also, while the Veteran did endorse flare-ups, the examination reports do not reflect that the Veteran was so disabled during these periods as to meet the schedular criteria for a higher rating. Therefore, while there is certainly evidence of functional loss due to pain, the preponderance of the evidence demonstrates that this functional loss is not so great to warrant an evaluation in excess of 10 percent. Regarding the issue of entitlement to an evaluation in excess of 20 percent as of December 6, 2012, a higher evaluation of 40 percent is warranted when there is evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. According to the December 2012 VA examination report, the Veteran was capable of forward flexion to 55 degrees. The examiner also noted that the Veteran was capable of forward flexion to 50 degrees before experiencing pain. While there was functional loss due to pain and interference with sitting, standing and/or weight-bearing, the evidence demonstrates that the Veteran was still capable of a range of motion in excess of that contemplated by a higher rating, despite this functional loss. Finally, the examiner concluded that there was no evidence of ankylosis. As such, the preponderance of the evidence of record demonstrates that an evaluation in excess of 20 percent is not warranted at any time since December 6, 2012, to include as due to functional loss. The Board has also considered whether an increased evaluation may be warranted at any time during the pendency of this claim due to incapacitating episodes associated with intervertebral disc syndrome. According to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes: A 10 percent rating requires evidence of incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; A 20 percent rating requires evidence of incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; A 40 percent rating requires evidence of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; A 60 percent rating requires evidence of incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note 1: For purposes of evaluations 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. 38 C.F.R. § 4.71a. However, a review of the record fails to reflect that the Veteran suffers from intervertebral disc syndrome or that she has had any physician prescribed bed rest. As such, a higher evaluation based on intervertebral disc syndrome cannot be established. The Board also recognizes that Note (1) of 38 C.F.R. § 4.71a instructs the rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. The record reflects that the Veteran has routinely denied any bowel or bladder impairment. While there is evidence of radiating pain into the lower extremities, service connection was previously established for sciatica of the lower extremities, bilaterally, by the RO in May 2013. As such, there are no additional neurologic conditions of record that would warrant a separate evaluation. The Board recognizes that the Veteran believes that she is entitled to a higher rating throughout the pendency of her claim. In her July 2010 appeal to the Board (VA Form-9), the Veteran asserted that a higher rating was warranted because her condition was increasing in frequency and was interfering with her job. While the Board is sympathetic to the Veteran's situation, her statements fail to reflect that she has met the schedular criteria for a higher evaluation at any time during the pendency of this claim. The record reflects that despite her pain and functional impairment, she has maintained a degree of motion in excess of that required for a higher schedular evaluation. As such, her statements fail to demonstrate that a higher schedular evaluation is warranted at any time during the pendency of this claim. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claim of entitlement to an increased evaluation for a thoracolumbar spine disability, to include a rating in excess of 10 percent prior to December 6, 2012, and a rating in excess of 20 percent as of December 6, 2012, must be denied. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. In this regard, to accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The provisions of 38 C.F.R. § 3.321(b) state as follows: Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court specified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. See VAOPGCPREC 6-96 (Aug. 16, 1996). In Thun, the Court further explained that the actual wages earned by a particular Veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that Veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board is aware of the Veteran's complaints as to the effects of her service-connected thoracolumbar spine disability on her occupation and activities of daily living. In the Board's opinion, all aspects of this disability are adequately encompassed in the assigned schedular ratings. In this respect, the Veteran complains of pain limiting her ability to stand or sit for prolonged periods or to do heavy lifting or get in and out of a car. However, the assigned evaluations are meant to compensate a veteran for painful motion with some degree of functional and occupational impairment. In short, the Board finds that the assigned schedular evaluation is adequate. As such, there is no basis for extraschedular referral in this case. See Thun, 22 Vet. App. 111, 114-15 (2008). The Board notes that, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In the present case, however, the Veteran has not alleged that she cannot work as a result of her service-connected thoracolumbar spine disability. Thus, the Board will not consider this matter further. ORDER The claim of entitlement to an increased evaluation for a thoracolumbar spine disability, to include a rating in excess of 10 percent prior to December 6, 2012, and a rating in excess of 20 percent as of December 6, 2012, is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs