Citation Nr: 1448043 Decision Date: 10/29/14 Archive Date: 11/05/14 DOCKET NO. 10-43 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE 1. Entitlement to an initial evaluation in excess of 10 percent for a sacroiliac joint disability prior to February 25, 2014. 2. Entitlement to an evaluation in excess 20 percent for a sacroiliac joint disability from February 25, 2014. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from January 2008 to April 2008. These matters are before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which granted service connection and a disability rating of 10 percent for the Veteran's sacroiliac disability effective April 5, 2008. The Veteran's disability rating was increased to 20 percent effective February 25, 2014 in an August 2014 rating decision. In November 2013, the Veteran testified before the undersigned Veterans Law Judge at a travel Board hearing at the RO in Nashville, Tennessee. A transcript of that hearing is of record. Thereafter the issue was remanded for additional development in January 2014. Following the remand instructions, in January 2014, the Veteran was asked whether she wished to pursue a claim for a total disability rating based on individual unemployability; she did not respond and, in a statement in support of the Veteran's claim in August 2014, the Veteran's representative made no mention of a TDIU claim. Accordingly, TDIU is not considered in the adjudication below. FINDINGS OF FACT 1. Prior to February 25, 2014, the Veteran's sacroiliac joint disability was manifested by no worse than flexion to 70 degrees with pain on motion. 2. From February 25, 2014, the Veteran's sacroiliac joint disability was manifested by no worse than flexion to 60 degrees with pain on motion. CONCLUSIONS OF LAW 1. Prior to February 25, 2014, the criteria for a disability rating in excess of 10 percent for a sacroiliac joint disability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 4.1-4 .7, 4.71a Diagnostic Code 5236 (2014). 2. From February 25, 2014, the criteria for a disability rating in excess of 20 percent for a sacroiliac joint disability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 4.1-4 .7, 4.71a Diagnostic Code 5236 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2014); 38 C.F.R. § 3.159 (2014). VA 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. The appeal arises from the Veteran's disagreement with the initial evaluation or following the grant of service connection. Once service connection is granted the claim is substantiated and additional notice is not required. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. The Veteran has not indicated, and the record does not contain evidence, that she is in receipt of disability benefits from the Social Security Administration. VA examinations were conducted in July 2010, May 2012 and February 2014; the record does not reflect, that the examinations and opinions were inadequate for rating purposes. The opinions were rendered by a medical professionals following thorough physical examination, interview of the Veteran, and review of the claim file. While the Veteran argued at her November 2013 Board hearing that her May 2012 VA examiner failed to complete range of motion studies, the record clearly demonstrates that such testing was completed, and the examination report is found to be adequate. This matter was most recently before the Board in January 2014, when the case was remanded to the RO in Nashville, Tennessee, for the purpose of obtaining a VA examination and in order to determine whether the Veteran wished to pursue a TDIU claim. All of the actions previously sought by the Board through its prior development request appear to have been completed as directed. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). A VA examination was conducted in February 2014. The February 2014 VA examiner obtained an accurate history, listened to the Veteran's assertions, laid a factual foundation, and provided reasoned bases for the conclusions that were reached. Of note, in July 2014, the RO sent the examination report to another VA examiner to address whether pain, weakness, fatiguability or incoordination could significantly limit functional ability during flare-ups or when used repeatedly. The examiner reviewed the prior report but did not examine the Veteran. In July 2014, the VA examiner responded that he was unable to provide the requested opinion without resorting to speculation because there was insufficient medical evidence upon which to base an opinion; nor could the examiner speak to additional loss of range of motion in degrees that this condition would cause during repeated use over time or flare-ups. While the July 2014 VA examiner was unable to provide an opinion, the Veteran is not prejudiced because the opinion was not necessary. The February 2014 VA examiner did, in fact, discuss the Veteran's reports of limitations of functioning as secondary to repeated motions and limitations as due to flare-ups and the examination findings are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). There is no indication in the record that any additional evidence, relevant to the issues 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, the Board finds that any such failure is harmless. Laws and Regulations Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Further, examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. 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 assigned. 38 C.F.R. § 4.7. 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," whether or not it is a case of an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Disabilities of the Spine The RO granted service connection for a right sacroiliac joint dysfunction and mild left sacroiliac joint dysfunction with pain and mid back strain and assigned a 10 percent rating, effective April 5, 2008, in a May 2009 rating decision. The Veteran appealed that decision and, in January 2014 the Board remanded the issue for further development. Following additional development, to include a February 2014 VA examination, the RO increased the Veteran's disability rating to 20 percent, effective the date of the examination. The Veteran contends that a higher disability rating is warranted for both periods on appeal. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating 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 warranted upon evidence of 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 disability rating is warranted where there is forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a , Diagnostic Codes 5235-5243. Note (2) provides that, 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a . Any associated objective neurologic abnormality is to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a , DC 5237, Note 1. The Veteran had claimed service connection for radiculopathy previously but her claim was withdrawn and dismissed in a January 2014 Board decision. Therefore symptoms relating to radiculopathy will not be considered in the analysis below. Factual Background and Analysis The Veteran was afforded a VA examination of the spine in July 2010. It was noted that an August 2009 MRI report demonstrated lumbar spinal stenosis. The Veteran was pregnant at the time of examination, which precluded some forms of testing. The Veteran reported pain which radiated up her back. She described moderate weekly flare-ups of back pain lasting hours which caused her to rest for relief. She described a history of decreased motion, stiffness, and pain and stated that she was able to walk for a distance of between one and three miles. The Veteran had been unemployed for one to two years. Effects on occupational activities were described as decreased mobility and pain. She had difficulty walking for over an hour and had back pain on prolonged standing. A November 2011 treatment record demonstrates the Veteran's report of constant pain of the low back; which was a 7 out of 10 and a 10 out of 10 at its worst. Inspection of the lumbar spine demonstrated tenderness of the paraspinal region. The Veteran had pain with motion and extension decreased. Flexion was normal. A January 2012 private treatment note reported range of motion limited by 25 percent, actual range of motion testing results were not reported. At a May 2012 VA examination, the Veteran described pain radiating up the back and down the left leg. The Veteran did not describe flare-ups which impacted the function of the thoracolumbar spine. Based upon the Veteran's reports of pain, range of motion studies found forward flexion limited to 70 degrees; extension limited to 30 degrees; lateral flexion limited to 20 degrees bilaterally; and bilateral rotation limited to 20 degrees. Repetitive testing demonstrated that extension was limited to 20 degrees; other measurements were the same. The Veteran had no localized tenderness or pain to palpitation, there was no guarding. Intervertebral disc syndrome was not found. Nerve conduction studies were negative. The Veteran's back condition did not impact her ability to work. The Veteran was not employed as she had small children who she cared for. In a February 2013 statement, the Veteran said that she lost two jobs and a career in nursing secondary to her injuries, including non-service connected cervical spine disabilities. During her November 2013 Board hearing, the Veteran testified that her pain had increased since her last VA examination and that on her last examination only flexion was tested. As discussed above, all appropriate range of motion testing was, in fact, done. In a February 2014 VA examination, the Veteran stated that her back condition was worse. The examiner noted that a September 2011 MRI demonstrated a broad based disc bulge with central disc protrusion and mild stenosis, and that a MRI in August 2013 demonstrated degenerative disc disease. The Veteran reported that flare-ups impacted the function of her spine, noting that her back symptoms flared up on prolonged standing and sitting and that she experienced burning and stabbing pain during these flare-ups. Range of motion studies, considering pain, found forward flexion limited to 60 degrees, extension was limited to 10 degrees, lateral flexion was limited to 20 degrees, and bilateral rotation was limited to 20 degrees. Repetitive testing demonstrated no change in motion. There was localized tenderness and pain to palpitation of the thoracolumbar spine however, there was no muscle spasm resulting in abnormal gait or spinal contour and there was no guarding resulting in abnormal gait or spine contour. Neurological findings were normal. There was no ankylosis of the spine. Intervertebral disc syndrome (IVDS)was found but there were no incapacitating episodes due to IVDS. The examiner stated that the Veteran's back disability did not impact her ability to work. A 10 percent disability rating is appropriate prior to February 25, 2014. At no time was flexion limited to less than 60 degrees, or combined range of motion of the thoracolumbar spine less than 120 degrees, or muscle spasm or guarding severe enough to result in abnormal gait or spine contour. There is no evidence to support a compensable rating for IVDS prior to February 25, 2014. From February 25, 2014, a 20 percent disability rating is warranted based on a finding that flexion was limited to 60 degrees. At no time has the evidence demonstrated ankylosis or flexion limited to 30 degrees or less and, accordingly, a higher, 40 percent disability rating is not warranted. There is no evidence to support a compensable rating for IVDS from February 25, 2014. The Board recognized that the Veteran experienced pain on motion to include burning pain with flare-ups, limited range of motion and fatigability due to her disability of the sacroiliac joint. These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule. For all musculoskeletal disabilities the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45 , 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. The rating criteria considered in this case reasonably describe the Veteran's disability level and these symptoms. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected sacroiliac joint disability is adequate, and referral to the Director of Compensation and Pension (Director) for extraschedular consideration is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). The preponderance of the evidence is against the claims for an increased rating; there is no doubt to be resolved; and an increased rating for a sacroiliac joint disability, before and from February 25, 2014, is not warranted. ORDER Entitlement to an initial evaluation in excess of 10 percent for a sacroiliac joint disability prior to February 25, 2014 is denied. Entitlement to an evaluation in excess 20 percent for a sacroiliac joint disability from February 25, 2014 is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs