Citation Nr: 1421869 Decision Date: 05/15/14 Archive Date: 05/29/14 DOCKET NO. 11-19 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an evaluation in excess of 10 percent for L5-S1 spondylolisthesis and multilevel degenerative joint disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from August 1987 to August 1991, and was called to active duty as a member of the Army National Guard from February 2005 to October 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which continued the 10 percent evaluation for L5-S1 spondylolisthesis and multilevel degenerative joint disease. The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in March 2013. A transcript of the hearing is of record. A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU) where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). While an assigned evaluation is in dispute here, the Veteran has not alleged that he is unemployed, or unemployable, due to service-connected disabilities. Accordingly, no TDIU claim is inferred. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA and Veterans Benefits Management System (VBMS) systems to ensure consideration of the totality of the evidence. FINDING OF FACT For the entire period on appeal, the Veteran's L5-S1 spondylolisthesis and multilevel degenerative joint disease has been manifested by forward flexion greater than 30 degrees but not greater than 60 degrees, with pain on movement; there are no incapacitating episodes. CONCLUSION OF LAW The criteria for an increased evaluation of 20 percent for L5-S1 spondylolisthesis and multilevel degenerative joint disease have been met for the entire rating period on appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. A January 2009 letter, which was provided to the Veteran prior to the adjudication of his present claim for an increased rating in March 2009, satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of the evidence that is necessary, or would be of assistance, in substantiating his claim, as well as regulations pertinent to the establishment of an effective date and of the disability rating . Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has fulfilled its duty to assist the Veteran. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 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; therefore, the duty to assist does not require the Board to obtain Social Security records prior to adjudication of the claims at issue. See Golz v. Shinseki, 590 F.3d 1370 (Fed. Cir. 2009). VA examinations were conducted in February 2009 and December 2011. The examiners made all required clinical findings and discussed the functional impact of the back disability on the Veteran's daily life. 38 C.F.R. § 3.159(c)(4) ; Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Therefore, the VA examinations are fully adequate for adjudication purposes. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). II. Legal Criteria In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, in the instant appeal, evidence from one year prior to the Veteran's submission of his claim received on December 9, 2008 will be considered. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings contained in the Rating Schedule represent the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). The Veteran's lumbosacral spine strain is currently rated at 10 percent under 38 C.F.R. § 4.71a , Diagnostic Code 5242 (degenerative arthritis of the spine). Back disabilities may be evaluated under either of two general rating formulas. One applies to Intervertebral Disc Syndrome (IVDS). 38 C.F.R. § 4.71a . However, this rating formula is not applicable, because the evidence does not reflect, that the Veteran's back disability has resulted in incapacitating episodes, periods of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician, which are required to obtain a compensable rating based upon IVDS. Under the General Rating Formula for Diseases and Injuries of the Spine, applicable under Diagnostic Code 5242, the disability is evaluated 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 disability rating is 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 the height. A 20 percent disability rating 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a. When rating under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). In evaluating any disability on the basis of limitation of motion, VA must also consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). III. Analysis The Veteran contends that his back disability has increased in severity. In a May 2012 statement, the Veteran stated that his life revolves around the pain level in his back. He stated that he cannot do any family activities, or normal every day functions, including work, without being very aware of what he is doing, otherwise he will "end up in bed with excruciating pain which would put him down for days." He stated that he takes medication for his pain daily, but sometimes the pain is unbearable. VA treatment records show the Veteran having complaints of continued back pain, which was treated with medication. No range of motion testing was conducted. The Veteran underwent a VA examination in February 2009. The Veteran reported constant lower back pain, stiffness and numbness, but no loss of bladder and bowel control. The Veteran stated that his pain can be elicited by physical activity, travels to the right hip area, and was aching, sharp and cramping. The pain was relieved by rest and medication. The Veteran did not report any incapacitating episodes. An examination revealed posture and gait to be normal, and no evidence of radiating pain on movement and no muscle spasm. Range of motion included forward flexion to 90 degrees. Repetitive use testing showed pain as the major functional impact. The Veteran underwent another VA examination in December 2011. The Veteran reported having flare-ups of pain which affected his ability to sit, stand, lift, bend, and his ability to sleep. Forward flexion was to 90 degrees, with no objective evidence of painful motion. Flexion was the same after repetitive use testing, with the functional impact being pain on movement. All other testing was normal, there was no radiculopathy or other neurologic abnormalities. The record also contains private treatment records from Dr. M.R., the Veteran's former chiropractor, from September 2009, as well as a record from Dr. J.F., the Veteran's current chiropractor, dated March 2013. The September 2009 record from Dr. M.R. stated that following testing in May 2009, the Veteran's forward flexion was to 52 degrees. The March 2013 record from Dr. J.F. indicates that following testing with a goniometer, lumbar flexion ranged from 46 to 50 degrees, with 50 being met 3 times. The Veteran had pain with all ranges of motion. After reviewing all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise as to whether the criteria for an increased evaluation of 20 percent have been met for the entire period on appeal. As noted above, at the September 2009 examination of Dr. M.R., and at the March 2013 examination of Dr. J.F., lumbar flexion was to between 46 and 52 degrees, which fall within the criteria for a 20 percent rating. However, at the February 2009 and December 2011 VA examinations, lumbar flexion was to 90 degrees. Therefore, as there is an approximately equal balance of evidence both for and against the claim, reasonable doubt will be resolved in the Veteran's favor, and the Board finds that the criteria for an increased rating of 20 percent have been met for the entire period on appeal. However, the evidence fails to show that at any time during the appeal period, forward flexion was to 30 degrees or less, which would warrant a 40 percent rating. The Board has further considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.40 and 4.45 would warrant higher ratings. See DeLuca, 8 Vet. App. at 202. However, a higher rating in excess of 20 percent is not warranted with consideration of these provisions. The Veteran's subjective complaints of discomfort and pain have been considered and have been taken into account in the assignment of the 20 percent evaluation. While pain has been the primary problem experienced by the Veteran, the available medical evidence does not suggest any additional loss of function due to pain, weakness, etc. equate to limitation of flexion to 30 degrees or less. There is also no evidence of ankylosis. Even accounting for any limitations of his lumbar spine range of motion due to pain, the lumbar flexion was only to 46 degrees at worst. As stated above, the Veteran's overall symptoms throughout the appeal period have remained relatively consistent, and most reflective of a 20 percent disability rating. Furthermore, although the Veteran complained of numbness and pain traveling to his hip at the February 2009 VA examination, no objective evidence of neurological manifestations of the Veteran's service-connected back disability, to include radiating pain in the extremities, bladder or bowel dysfunction, or sensory impairment, have been noted. In fact, the February 2009 examiner specifically found no evidence of radiating pain on movement, and in the more recent December 2011 VA examination, the examiner found no evidence of radiculopathy or any neurological abnormalities. As a result, the Board finds that the Veteran is not entitled to a separate compensable rating for neurological abnormalities. IV. Extraschedular Consideration Consideration has been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred 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. Here, the rating criteria permit higher schedular evaluations than are currently assigned for additional signs and symptoms of disability, or greater degrees of disability. The criteria, as applied and considering the DeLuca factors, fully encompass the Veteran's complaints and the clinical findings related to the service-connected back disability. The Schedular criteria are adequate, and no further discussion of 38 C.F.R. § 3.321 is required. ORDER An increased evaluation of 20 percent, but not greater, for L5-S1 spondylolisthesis and multilevel degenerative joint disease is granted, for the entire period on appeal. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs