Citation Nr: 1412349 Decision Date: 03/24/14 Archive Date: 04/02/14 DOCKET NO. 09-46 630A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a disability rating in excess of 10 percent for lumbosacral strain with mild degenerative disc disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from June 1986 to July 1997 and from September 1999 to April 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2007 Regional Office (RO) rating decision that denied a compensable rating for lumbosacral strain with mild degenerative disc disease. In May 2009, the RO increased the Veteran's rating to 10 percent as of the date of his claim. He continues to appeal for a higher rating. Jurisdiction is currently with the RO in Chicago, Illinois. In June 2013, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran a new VA medical examination. The action specified in the June 2013 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has raised the issue of service connection for left foot drop as secondary to his service-connected low back disability; this matter is referred to the RO for initial consideration. This appeal was processed using the VBMS 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 The Veteran's service-connected lumbosacral strain with mild degenerative disc disease does not result in: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; combined range of motion of the thoracolumbar spine not greater than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; intervertebral disc syndrome with incapacitating episodes; or radiculopathy of the lower extremities. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 10 percent for service-connected lumbosacral strain with mild degenerative disc disease have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. 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 of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 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 these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R., Part 4 (2013). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2013). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. The Veteran's low back disability is rating under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a (2013). Under the General Formula, diseases and injuries to the spine are to be evaluated under Diagnostic Codes 5235 to 5243 as follows: 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; Unfavorable ankylosis of the entire spine ............................................................. 100 Unfavorable ankylosis of the entire thoracolumbar spine ...................................... 50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine ................................................................................................ 40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine ........................................................................................... 30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 ...................................... 20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 .................................................................................. 10 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate Diagnostic Code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. 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 cervical spine is 340 degrees and of the thoracolumbar 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): 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): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes With incapacitating episodes having a total duration of at least six weeks during the past 12 months ........................................................................................................ 60 With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months ............................................................... 40 With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months ............................................................. 20 With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months ............................................................. 10 Note (1): For purposes of evaluations under 5293, 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. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a (2013). Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology, and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, painful movement, swelling, deformity, or disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Veteran filed his claim for an increased disability rating in March 2006, asserting that he experiences pain, muscle spasms, limitation of motion, and numbness in his left leg. He claimed that he was "incapacitated" three or four weeks a year due to serious back problems. The Board will consider whether the Veteran was entitled to a higher rating from March 2005 onward, or one year prior to his date of claim. The Veteran was afforded a VA examination in October 2006. At that time, the Veteran complained of near constant low back pain, as well as radiating pain, numbness, tingling, and giving way in the left lower extremity. He denied any treatment, including medication or assistive devices, and reported no flare-ups. He denied any incapacitating episodes. He reported difficulty standing or sitting for prolonged periods. He further stated that he no longer engages in sports or other strenuous physical activities and has trouble performing some household chores. His gait was normal. His stance was normal. Examination of the lumbar spine showed mild scoliosis with convexity on the left side of the lumbar area. There was no muscle spasm. Active and passive range of motion was similar. Flexion was to 90 degrees with pain at 90 degrees. Extension was to 10 degrees with no pain. Right and left side bending was to 15 degrees, which improved to 20 degrees with repeated range of motion testing. The Veteran complained of pain on the left side of his spine with right and left side bending. Right and left rotation was to 30 degrees with pain at 30 degrees. Following repetitive range of motion testing, the patient complained of pain; however, there was no fatigue, weakness, incoordination, or lack of endurance. There was no further loss of degrees of motion or functional impairment due to pain, fatigue, weakness, incoordination, or lack of endurance. Sensation was diminished in the left lower extremity. Sensation was intact in the right lower extremity. Strength in the bilateral lower extremities was normal. A CT scan of the lumbar spine revealed normal alignment. Bones and intervertebral discs were normal in height at all levels with no indications of traumatic or significant degenerative changes. Tomographic images revealed the thecal sac to be normally spacious between the level of Ll through L4. At the L4-L5 level, there was a suggestion of mild to moderate congenital stenosis of the spinal canal. At the same level, there appeared to be partial absence of the left lamina, possibly related to previous surgical decompression. Only at the L5-S1 level is there question of possible mild degenerative stenosis of the neural foramina bilaterally. There was no gross evidence of herniated disc on current study. Survey of the bones was unremarkable, with the exception of the probable laminectomy defect on the left L4-L5 level. An EMG study showed positive electrodiagnostic evidence for left tarsal tunnel syndrome and left peroneal neuropathy, but no evidence for lumbar radiculopathy. The Veteran was diagnosed with mild degenerative disc disease of lumbar spine status post-surgery, with no current electrodiagnostic evidence of lumbar radiculopathy. In October 2013, the Veteran was afforded another VA examination of his low back disability. The Veteran reported that he has had chronic intermittent low back pain since 1987. He injured his lower back seriously in 2002 while he was working in a warehouse. He was picking up an order, a box containing 6 gallons, and he suffered severe, acute low back pain that incapacitated him for many months. In July 2002, he suddenly developed left foot drop and numbness along the lateral aspect of his left leg below the knee, but no EMG was done. In January 2003, the Veteran underwent surgery for lumbar radiculopathy, after the failure of all conservative therapies, which included rest, medications, physical therapy, and epidural steroid shots. Veteran says he went back to physical therapy after the back surgery. He reported that the surgery did not help his left foot drop, but subsequent physical therapy taught him how to walk with the foot drop. He was told that it may take many years for the numbness to recover. He never had any saddle anesthesia or any problems with control of his sphincters. He stated that he has not seen any doctors for his back condition in the past ten years. He continues to have chronic intermittent low back pain due to arthritis, with some flare ups now and then, but never as bad as the one he had in 2002. He denied missing any work in the past two years. On examination, forward flexion of the thoracolumbar spine was from 0 to 90 degrees, with no objective evidence of painful motion. Extension was from 0 to 25 degrees, with no objective evidence of painful motion. Right lateral flexion was from 0 to 30 degrees, with no objective evidence of painful motion. Left lateral flexion was from 0 to 25 degrees, with no objective evidence of painful motion. Right lateral rotation was from 0 to 30 degrees, with pain at 30 degrees. Left lateral rotation was from 0 to 25 degrees, with pain at 25 degrees. There was no additional limitation of motion following repetitive testing. The examiner reported that the Veteran would have functional loss or functional impairment due to weakened movement and excess fatigability. No tenderness to palpation, muscle spasm, or guarding was found. The Veteran had normal muscle strength, except for slightly weakened left great toe extension, and no muscle atrophy. Deep tendon reflexes were intact. Sensation to light touch was normal in the lower extremities, except over the Veteran's left foot/toes. Straight leg testing was negative bilaterally. The examiner found that the Veteran had no radicular pain or signs or other signs or symptoms due to radiculopathy. She also found that the Veteran does not have intervertebral disc syndrome of the thoracolumbar spine. The Veteran was diagnosed with lumbar spondylosis without evidence of radiculopathy or myelopathy. The examiner explained that an EMG done in 2006 for the Veteran's last compensation examination showed left peroneal nerve condition and tarsal tunnel condition, but no evidence of lumbar radiculopathy. Based on these VA examinations, as well as all VA and private treatment records, the Board finds that during the period on appeal, the Veteran's service connected lumbosacral strain has not resulted in forward flexion of the thoracolumbar spine less than 60 degrees or combined range of motion of the thoracolumbar spine less than 120 degrees. The Board has considered the Veteran's complaints that he has constant pain and muscle spasms; however, there is no evidence that these subjective complaints result in observable functional impairment, such as abnormal gait, abnormal spinal contour, or limitation of motion, which might warrant a higher disability rating under the General Formula. In this regard, the Board has accorded greater weight and probative value to the objective findings shown on repeat examination. Notably, on multiple VA examinations it has been determined that he has not had additional limitation of motion following repetitive testing. Thus, an increased rating to 20 percent is not warranted. The currently assigned rating of 10 percent adequately contemplates and compensates the Veteran for his existing limitation of motion with associated functional impairment. The Board notes that there is no evidence of incapacitating episodes as defined by regulation such that a higher disability rating could be assigned under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. While the Veteran claimed in March 2006 that he is "incapacitated" three or four weeks a year due to his service connected low back disability, he told the October 2006 VA examiner that he had no incapacitating episodes, contradicting his earlier claim. More importantly, the October 2013 VA examiner specifically found that the Veteran does not suffer from intervertebral disc syndrome with incapacitating episodes. Furthermore, although the Veteran himself claims that he is "incapacitated" by his disability, there is no evidence of record that his treating physician has prescribed periods of bedrest for his condition, as required by VA regulations to be a true incapacitating episode. At the most recent VA examination, the Veteran indicated that he had not missed any work for the previous two years. The Board has also considered whether a separate disability rating can be assigned for a neurological disability. The Veteran has reported symptoms of pain and numbness in the left lower extremity, which he alleges are secondary to his service-connected low back disability. During the period on appeal, there is no competent evidence that the Veteran has radiculopathy of the left lower extremity. Both the October 2006 and October 2013 VA examiners did not diagnose the Veteran with radiculopathy. There is no evidence on file that the Veteran has any residual neurological disability stemming from his service-connected low back disability. Essentially, the Veteran has offered his opinion as to the etiology of his lower extremity complaints; however, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has a left lower extremity disability, to include radiculopathy, due to his service connected low back disability is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. Finally, the Board has also considered whether the Veteran's disability warrants referral for extraschedular consideration. 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) (2013). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Board finds that the schedular rating criteria reasonably reflect the Veteran's disability levels and symptomatology. In this case, it does not appear that the Veteran has an "exceptional or unusual" disability; he merely disagrees with the assigned evaluation for his level of impairment. The Veteran's reported symptoms, including pain that radiates and limitation of motion, are not unusual or different from those contemplated by the schedular criteria. Indeed, they are explicitly part of it. There is no evidence of frequent hospitalizations or significant interference with employment. The available schedular evaluations for the Veteran's service-connected disability are adequate. Referral for extraschedular consideration is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). For all the above reasons, entitlement to a disability rating in excess of 10 percent for the Veteran's service connected lumbosacral strain with mild degenerative disc disease is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in a May 2006 letter prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed condition. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). ORDER Entitlement to a disability rating in excess of 10 percent for service connected lumbosacral strain with mild degenerative disc disease is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs