Citation Nr: 1343469 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 07-17 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a rating in excess of 20 percent for degenerative arthritis of the lumbar spine (hereinafter, 'lumbar spine disability'). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to January 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In a January 2005 rating decision denied a rating in excess of 20 percent for the service-connected lumbar spine disorder. In a July 2009 decision, the RO awarded a temporary total evaluation for convalescence from May 7, 2009 to July 1, 2009. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge in June 2011. Additionally, the Veteran through his testimony, with the assistance of his representative, demonstrated actual knowledge of the elements necessary to substantiate the claims. See Bryant vs. Shinseki, 23 Vet. App. 488 (2010). A copy of the hearing transcript has been associated with the claims folder. The issue was previously remanded by the Board for an additional VA examination in September 2011. The Veteran underwent an additional VA examination in August 2012. The Board finds substantial compliance with the requirements articulated in the Board's prior remand decision. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104 -05 (2008); Dyment v. West, 13 Vet. App. 141 (1999). The September 2011 Board remand also included the issue of entitlement to service connection for posttraumatic stress disorder (PTSD). In an October 2012 decision, the RO granted service connection for PTSD as well as assigned additional ratings for radiculopathy associated with the Veteran's service-connected lumbar spine. The Veteran has not expressed disagreement with these determinations and, as such, the issues are not currently on appeal. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. The Board observes that the United States Court of Appeals for Veterans Claims (Court) has determined that where a claimant, or the record raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for a total disability rating based on individual unemployability (hereinafter referred to as TDIU). Rice v. Shinseki, 22 Vet. App. 447, 453-455 (2009). During a June 2011 hearing, the Veteran asserted that he is unable to work due to his back. The Board also notes that Social Security Administration disability record indicates the Veteran is disabled and has a primary diagnosis of anxiety disorder, for which the Veteran is also service-connected. Thus, the record raises the question of entitlement to TDIU and the matter is referred to the RO for action. FINDING OF FACT A lumbar spine disability is manifested, at worst, by forward flexion to 40 degrees, without any findings of ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for the Veteran's lumbar spine disability, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2008); 38 C.F.R. § 3.159(b) (2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in November 2004, November 2008, September 2011, and January 2012 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The November 2008 letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Service treatment records and post-service VA and private treatment records have been associated with the claims file. All identified and available treatment records have been secured. The Board finds that VA has fulfilled its duty to assist in obtaining such records. Social Security Administration (SSA) disability records were also obtained and associated with the claims file. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). In this case, the Veteran was provided VA examinations in January 2005, September 2010, and August 2012 to determine the nature and severity of the Veteran's service-connected disability. The examination reports reflect that the examiners interviewed and examined the Veteran, reviewed his claims folder, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. Furthermore, these examination reports along with the remainder of the evidence of record contain sufficient information to rate the Veteran's disability under the appropriate diagnostic criteria. The Board therefore concludes that the VA examination reports are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Increased Rating Claim Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Where there is a question as to which of two evaluations shall 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. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Court has held that 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. See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular 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. 38 C.F.R. § 4.59. III. Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Veteran was granted service connection for a lumbar spine disability in a July 2002 RO decision due to an in-service injury. VA progress notes dated from July 2003 to November 2013 indicate ongoing complaints of low back pain. In a November 2004 VA progress note, the examiner noted that an MRI report of his lumbar spine showed severe degenerative disc disease with spondylosis and anteriolitheis and lithesis of the lumbar spine. During a January 2005 VA examination, the Veteran complained of sharp and constant pain with stiffness. He reported no periods of flare-ups of his lumbar spine disability. The Veteran denied numbness, weakness, bladder complaints or bowel complaints. He can walk a quarter mile in approximately 4-5 minutes and then he has to quit walking because of pain. He states that his condition does not interfere with his mobility with walking or transferring or his activities of daily living. It does interfere with driving after 15-20 minutes. He reported his occupation is affected by his lumbar spine disability in that it causes him to have to stop working until the pain eases off and he works as a mechanic. Upon physical examination, there was moderate to severe spasm of the paraspinal muscles, but no tenderness present. Forward flexion was limited to 70 degrees with pain, extension was to 29 degrees with pain. Left lateral flexion was to 25 degrees, right lateral flexion was to 35 degrees, left rotation was to 30 degrees, and right rotation was to 25 degrees, all with pain. Diagnosis was spondylosis of the lumbosacral spine, spondylolisthesis of the lumbar spine, and chronic lumbar strain. A May 2008 VA MRI report included an assessment of Grade I spondylolisthesis at L4/5 with spinal stenosis. The Veteran underwent a fourth lumbar vertebra to fifth lumbar vertebra laminectomy in May 2009. During a September 2009 VA examination, the examiner noted that the Veteran has minimal to moderate functional impairment as he uses a cane all of the time, he has a weight restriction of 15 pounds, he is unable to stoop over, he has difficulty climbing steps, and he is unable to stand for a long periods. The Veteran also complained he is unable to walk more than a few yards. Upon physical examination, posture and head position were normal, as was gait. The examiner noted no thoracolumbar spine ankylosis. Flexion was limited to 60 degrees, extension to 20 degrees, left and right lateral flexion and rotation were limited to 20 degrees. There was objective evidence of pain on active range of motion. The examiner noted no objective evidence of pain following repetitive motion and no additional limitations after three repetitions of range of motion. The examiner referred to the October 2009 VA MRI report which included post-surgical changes from posterior decompression procedure L4-L54 moderate mild degenerative disc disease. During a June 2011 hearing, the Veteran asserted that his May 2009 surgery made his spine pain worse. He reported he cannot walk or stand for long periods. He asserted he cannot bend forward or backward without falling. He complained of problems getting into and out of the bathtub and putting on his shoes. He can drive, but not long distances. During an August 2012 VA examination, the examiner noted a diagnosis of spinal stenosis of the lumbar region. The Veteran complained of constant throbbing pain in the back with standing and sitting. He takes medication. He reported it is difficult for him to get up from a sitting position and he cannot walk long distances. Upon physical examination, the examiner found forward flexion to 40 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees. Upon repetitive-use testing, forward flexion was to 35 degrees, extension was to 10 degrees, right lateral flexion was to 10 degrees, left lateral flexion was to 15 degrees, and right and left lateral rotation were to 15 degrees. The examiner noted functional impairment included less movement, weakened movement, incoordination, pain on movement, instability of station, disturbance of locomotion, and interference with sitting and standing. The Veteran showed guarding or muscle spasm of the thoracolumbar spine producing an abnormal gait. The Veteran did not have a diagnosis of intervertebral disc syndrome. He uses a cane constantly. The examiner indicated that his spine condition impacts his ability to work as he is unable to lift anything heavy and he cannot bend over too long. SSA disability records included duplicate copies of VA progress notes. Disabilities of the spine are to be evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2012). Intervertebral disc syndrome will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes (outlined below), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Under the current rating criteria, degenerative arthritis of the spine (designated at Diagnostic Code 5237) is rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine. Intervertebral disc syndrome (designated at Diagnostic Code 5243) is rated either pursuant to the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in a higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The diagnostic code criteria pertinent to rating spinal disabilities in general were revised effective September 26, 2003 (as codified in relevant part at 38 C.F.R. § 4.71, Diagnostic Codes 5237 through 5243). A 20 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 20 degrees but not greater than 50 degrees; or, the combined rating of motion of the thoracolumbar spine is not greater than 120 degrees; or muscle spasm or guarding is 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 warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5237 for lumbosacral strain, Diagnostic Code 5242 for degenerative arthritis of the spine, and Diagnostic Code 5243 for intervertebral disc syndrome. In addition to evaluating intervertebral disc syndrome (IVDS) under the general rating formula for diseases and injuries of the spine outlined above, it may also be rated based on incapacitating episodes, depending on whichever method results in the higher evaluation when all service-connected disabilities are combined under 38 C.F.R. § 4.25. Note (1) defines an 'incapacitating episode' as '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.' 'Chronic orthopedic and neurologic manifestations' were defined as 'orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so.' Under the rating schedule, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula, Note 2, and Plate V. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Initially, the Board notes that there has been no diagnosis of IVDS during the claims period. The August 2012 VA examiner specifically stated that there were no findings of IVDS; therefore, a rating under the criteria for IVDS is not warranted. As the Veteran is not entitled to an increased rating based on incapacitating episodes, it is necessary to determine whether he is entitled to a higher rating based on his orthopedic and neurological manifestations. Turning to the orthopedic manifestations, the limited thoracolumbar forward flexion shown by the Veteran at his VA examinations do not warrant a higher disability rating of 20 percent. The Board notes that in order for the Veteran to be awarded a disability rating higher than 20 percent under the general spine formula, the evidence must show for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. As discussed in detail above, the evidence fails to demonstrate limitation of motion or ankylosis of the entire thoracolumbar spine to obtain a higher evaluation. See supra 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). In fact forward flexion was limited to, at worst, 40 degrees as shown during the August 2012 VA examination. Furthermore, the evidence simply does not show favorable ankylosis of the lumbar spine to warrant a 40 percent disability rating or unfavorable ankylosis to warrant a 50 percent disability rating. The aforementioned ranges of motion findings do not demonstrate that the joint was immobile or fixed in place. As the Veteran has not been noted to have ankylosis of the spine at any time or limitation of motion to 30 degrees or less, the Board finds that a disability rating in excess of 20 percent is not warranted for his orthopedic findings. Further, there is no evidence to support a higher compensable disability rating for the lumbar spine disability based on consideration of limitation of motion or with functional loss, as the Veteran has not exhibited a sufficient degree of limited flexion or extension, even when accounting for the factors of functional loss. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). During the August 2012 VA examination, forward flexion was to 35 degrees upon repetitive-use testing. Though this demonstrates a further loss of range of motion, the loss does not equate to the loss of motion necessary for an increased 40 percent rating (forward flexion limited to 30 degrees or less). Therefore, an increased rating under DeLuca is not warranted. Regarding his neurological symptoms, the Board notes that the Veteran was granted separate disability ratings for right and left lower extremity neuropathies in an October 2012 decision. The Veteran has not contested these disability ratings, and issues are not on appeal. There is no indication that there are additional neurological symptoms that have not been separately rated. In sum, an evaluation in excess of 20 percent rating for a lumbar spine disorder is not warranted at any time during the appeals period. Based upon the guidance of the Court in Hart, 21 Vet. App. 505 (2007), the Board has considered whether staged ratings are appropriate; however, in the present case, no staged ratings are warranted by the Veteran's symptomatology. The Board has considered the question of whether an extraschedular rating may be appropriate for the Veteran's service-connected back disability. See Bagwell v. Brown, 9 Vet. App. 157 (1966). Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted 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 period of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.21(b) (1) (2012). 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, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then 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 Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The Veteran has not identified any factors which may be considered to be exceptional or unusual, and the Board has been similarly unsuccessful. There is no evidence in the medical records of an exceptional or unusual clinical picture. The record demonstrates that the Veteran has complaints of limitation of motion which is considered by the rating criteria and pain which is considered by the DeLuca factors. Furthermore the record demonstrates that the Veteran is without hospitalization as a result of his back disability. Further, the record does not demonstrate any other reason why an extraschedular rating should be assigned. Accordingly, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) (1) is not warranted. ORDER Entitlement to a rating in excess of 20 percent for degenerative arthritis of the lumbar spine is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs