Citation Nr: 1419785 Decision Date: 05/02/14 Archive Date: 05/16/14 DOCKET NO. 10-39 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for moderate L5-S1 spondylosis with L5-S1 spondylolisthesis. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from May 1974 to July 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which granted service connection, and assigned an initial disability rating of 10 percent, for moderate L5-S1 spondylosis with L5-S1 spondylolisthesis. Although the Veteran had requested a Board hearing in his September 2010 VA Form 9, he later notified the RO that he would not attend the scheduled hearing, and requested that his appeal continue with the evidence of record. In a February 2013 decision, the Board remanded the case to the RO for further development. In that decision the Board referred a claim raised by the record for service connection for tinnitus. That issue has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013). FINDINGS OF FACT 1. The Veteran's moderate L5-S1 spondylosis with L5-S1 spondylolisthesis has 90 degrees of forward flexion with complaints of painful motion beginning at 70 degrees, and a combined range of motion of 200 degrees of the thoracolumbar spine; is not productive of: incapacitating episodes, or 60 degrees or less of forward flexion, or 120 degrees or less for a combined range of motion of the thoracolumbar spine, or associated objective neurologic abnormalities. 2. The rating schedule is adequate for application to the Veteran's claim. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for moderate L5-S1 spondylosis with L5-S1 spondylolisthesis, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5235-5243 (2013). Duties to Notify and Assist The appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed . Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records and VA medical treatment records have been obtained; he did not identify any outstanding treatment records pertinent to the appeal. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. A VA examination was conducted in August 2009; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. VA attempted to schedule the Veteran for another VA examination in relation to this claim. However, he failed to report for the examination. See 38 C.F.R. § 3.655 ; See also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, any such failure is harmless. REASONS AND BASES FOR FINDINGS AND CONCLUSION Evaluation of Disabilities Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993). When a disability is not specifically listed in the Rating Schedule, it may be rated under a closely related injury in which the functions affected and the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). If the criteria for a compensable rating under a diagnostic code are not met, then a noncompensable rating is awarded. 38 C.F.R. § 4.31 (2012). 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). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is competent to report complaints regarding symptoms capable of lay observation. 38 C.F.R. § 3.159(a)(2) (2012). However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Rating factors for a disability of the musculoskeletal system include functional loss. A 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. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion, weakness, or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2013) provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. If limitation of motion is absent, and there is X-ray evidence of degenerative arthritis involvement of 2 or more major joints or 2 or more minor joint groups, and there are occasional incapacitating exacerbations, then a 20 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Disabilities of the spine are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) (2013) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2013), whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2011). VA's Rating Schedule provides a single set of criteria for rating conditions of the spine, no matter which spine-related diagnostic code applies. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or the combined range of motion of the thoracolumbar spine is 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; vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted 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 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 rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Id. Unfavorable ankylosis of the entire spine warrants a 100 percent evaluation. Id. The notes listed below apply to the General Rating Formula for Diseases and Injuries of the Spine: Note (1) 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): For VA compensation purposes, 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 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. (See also 38 C.F.R. § 4.71a, Plate V). 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, in the case of thoracolumbar spine disability, an unfavorable ankylosis is a condition in which 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 (0 degrees) always represents favorable ankylosis. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is warranted when there are 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 is warranted when there are 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 is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. 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. If intervertebral disc syndrome is presented 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. Analysis The clinical evidence most reflective of the present condition of the Veteran's lumbar spine disability is contained in an August 2009 VA examination report. VA subsequently scheduled the Veteran for an additional VA examination in relation to this claim, however, he failed to report for the scheduled examination. See 38 C.F.R. § 3.655. During the August 2009 VA examination the Veteran reported he had constant low back pain, which he rated as 7 on a scale of 10, with flare-ups when the pain jumps to a level of 9 out of 10. He reported the flare-ups would last about 30 minutes and occurred one or two times a week. Increased weight bearing activity or movement seemed to cause the flare-ups. He reported that he had some pain in his legs on the posterior aspect of his thighs, which was worse than the back pain during flare-ups. He had occasional numbness and tingling in the legs. He reported he used a cane for the problem and this moderately alleviated the pain. He reported he could walk about an hour or half a mile. The Veteran reported he had not had surgery, but he had had physical therapy and that he takes tramadol for the pain. The pain affected his activities of daily living and his ability to do his job, secondary to decreased mobility and endurance. He was unemployed. No doctor had ordered him to be on bed rest in the last 12 months and he had no recent changes of bladder or bowel function. He denied having any recent fevers. On examination of the lumbar spine, the Veteran had some tenderness to palpation. He had forward flexion from zero to 90 degrees; extension from zero to 20 degrees; right and left lateral bending from zero to 25 degrees, bilaterally; and right and left lateral rotation from zero to 20 degrees, bilaterally. These ranges of motion were for both active and passive motion. He had pain with the last 20 degrees of each of the arcs of motion. There was no alteration in pain or arc of motion with three repetitions. His gait was slightly antalgic. He had 5/5 strength with bilateral hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. His sensation was intact to light touch in both lower extremities. He had negative straight leg raise bilaterally. He had a negative Babinski bilaterally. He had 2+ Achilles and patellar tendon reflexes bilaterally. He had no clonus bilaterally. Imaging of the lumbar spine showed there was L5-S1 spondylolisthesis and moderate spondylosis noted at L5-S1. The report contains an impression of moderate L5-S1 spondylosis with L5-S1 spondylolisthesis. The examiner concluded that it was conceivable that pain could further limit function, particularly with repetitive use; however, it was not feasible to express any of this in terms of additional limitation of motion with any degree of medical certainty. VA treatment records are dated from 2008 to November 2012. These records show complaints of chronic low back pain, neck pain, and leg pain and that the Veteran takes Tramadol for the pain symptoms. A November 2009 VA Nursing Administration Note shows that a VA physician provided a statement that the Veteran had arthritis in his spine that makes activities painful. The physician further stated that the Veteran would not be able to sweep, stoop, reach over his head, lift over five pounds, stand longer than 10 minutes, or walk longer than 20 minutes at a time. The physician further stated that the Veteran would be ineligible for any job with these requirements. Subsequent VA treatment records generally do not indicate any significant problems arising from the service-connected low back disability. The VA treatment records include a January 2010 list of objective findings, which notes pain, but only of the joint involving the ankle and foot; and a February 2010 listing of the Veteran's past medical history, which does not include a history pertinent to the low back. 1. Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes There is no evidence of any incapacitating episodes of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. At the most recent VA examination in August 2009 the Veteran reported he had had no incapacitating episodes. There is no evidence of symptoms generally associated with intervertebral disc syndrome and resulting in incapacitating episodes having a total duration of at least two weeks, on which to premise a rating higher than 10 percent for incapacitating episodes due to the lumbar spine condition. Thus a rating higher than 10 percent is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Nor does the evidence show that there is x-ray evidence of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations so as to warrant a 20 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5003 for degenerative arthritis. 2. Disability Evaluation Based on Range of Motion To warrant a disability higher than the 10 percent rating currently in effect on the basis of range of motion, the evidence must show that the Veteran's low back disability is productive of forward flexion of the thoracolumbar spine limited to 60 degrees or less, to include with consideration of the holding in Deluca. The VA examination conducted during the pendency of the claim showed that, at worst, the Veteran's low back disability was limited to 90 degrees of flexion with pain beginning at 70 degrees. See Deluca. The combined range of motion for the thoracolumbar spine was 200 degrees. The examiner found that although the veteran had pain with the last 20 degrees of each arc of motion, there was no alteration in pain or arc of motion with three repetitions. None of the VA examination or other clinical records during the pendency of the claim contain findings productive of forward flexion of the thoracolumbar spine limited to 60 degrees or less, or a combined range of motion limited to 120 degrees of motion or less, even with consideration of pain, weakness and other symptoms described in DeLuca. A higher rating is not warranted based on range of motion criteria. Id. 3. Associated Neurologic Abnormality No objective neurological abnormalities associated with the Veteran's moderate L5-S1 spondylosis with L5-S1 spondylolisthesis are demonstrated. VA examination as well as other medical evidence of record show no diagnosis of any such abnormalities. The Veteran has reported he had had no bowel or bladder changes. There is no specific claim or competent evidence of any sexual dysfunction associated with the low back disability. During the August 2009 VA examination the Veteran reported that he had some pain in his legs and occasional numbness and tingling in his legs. However, on examination, the examiner found normal strength in the lower extremities, negative Babinski, normal tendon reflexes, negative straight leg raise, and no clonus, bilaterally. The examiner diagnosed no separate neurological findings. Likewise, VA treatment records show complaints of pain but no findings or diagnosis of neurological pathology that would allow a separate compensable evaluation associated with the low back condition. Although another examination was scheduled to further evaluate for any lower extremity radiculopathy or neuropathy, the Veteran failed to report for such examination. Consequently, there is no competent evidence of record to support his claim for a higher or separate rating based on neurologic abnormality associated with the low back disability. A separate rating for associated neurologic abnormality is not warranted. 4. Conclusions The medical evidence does not support a disability rating in excess of 10 percent for the Veteran's moderate L5-S1 spondylosis with L5-S1 spondylolisthesis under any potentially relevant diagnostic code. An extraschedular rating may be provided where: (1) the schedular criteria are inadequate to describe the severity and symptoms of the claimant's disability; (2) the case presents other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating is in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran has not described any unusual or exceptional features associated with his moderate L5-S1 spondylosis with L5-S1 spondylolisthesis. The rating criteria are adequate to evaluate the disability, and referral for consideration of extraschedular rating is not warranted. A claim for a total disability evaluation based on individual unemployability (TDIU) is part of an increased rating claim when such TDIU claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not claimed that he is unemployable due to his moderate L5-S1 spondylosis with L5-S1 spondylolisthesis, and the record does not show that he is unable to secure or follow a substantially gainful occupation as a result of the low back disability. At the Veteran's August 2009 VA examination he reported that he was unemployed at that time; however, he did not attribute that to his low back disability, and the examiner diagnosed only a moderate condition due to the low back disability. The evaluation of the medical evidence regarding the low back results in a compensable rating of only 10 percent, which does not reflect a condition productive of unemployability. A VA physician in November 2009 recorded an opinion that the Veteran would be ineligible for any job with specific requirements to sweep, stoop, reach over his head, lift over five pounds, stand longer than 10 minutes, or walk longer than 20 minutes at a time. While these limitations might well preclude the Veteran from performing a number of "physical" jobs, the inability to perform these specific requirements would not preclude sedentary work. As the record does not show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of the low back disability, the Board finds that a claim for TDIU is not raised by the record under Rice. The preponderance of the evidence is against the award of compensation in excess of 10 percent; there is no doubt to be resolved; and an increased rating for moderate L5-S1 spondylosis with L5-S1 spondylolisthesis is percent for moderate L5-S1 spondylosis with L5-S1 spondylolisthesis is deniednot warranted. ORDER Entitlement to an initial disability rating in excess of 10 percent for moderate L5-S1 spondylosis with L5-S1 spondylolisthesis is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs