Citation Nr: 1521827 Decision Date: 05/21/15 Archive Date: 06/01/15 DOCKET NO. 13-26 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial compensable rating for a low back disability, prior to September 18, 2014. 2. Entitlement to an initial disability rating in excess of 10 percent for a low back disability, beginning September 18, 2014. ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1978 to October 1992. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. FINDINGS OF FACT 1. Prior to April 16, 2012, the Veteran's service-connected low back disability was manifested by radiological evidence of arthritis in one minor joint group of the spine. 2. Beginning April 16, 2012, and prior to September 18, 2014, the Veteran's service-connected low back disability was manifested by radiological evidence of arthritis in two minor joint groups of the spine. 2. Beginning September 18, 2014, the Veteran's service-connected low back disability was manifested by radiological evidence of arthritis, pain on movement, limitation of forward flexion to 85 degrees, and a combined range of motion of the thoracolumbar spine of 230 degrees. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating prior to April 16, 2012, for a low back disability have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5239 (2014). 2. The criteria for an initial compensable rating of 10 percent beginning April 16, 2012, and prior to September 18, 2014, for a low back disability have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5239 (2014). 3. The criteria for a rating in excess of 10 percent beginning September 18, 2014, for a low back disability have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242-5237 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim herein, 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2014). The Veteran's claim of entitlement to an increased evaluation for a low back disability arises from his disagreement with the initial evaluation assigned 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. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed. The duty to assist the Veteran has been satisfied in this case. The RO has obtained the Veteran's service treatment records and his identified VA and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, the Veteran has been afforded VA examinations that are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the August 2011 and September 2014 examiners took into account the Veteran's statements and treatment records, which allowed for fully-informed evaluations of the claimed disability. Id. As such, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (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 this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 556 U.S. 369 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). The Veteran contends his service-connected low back disability is more severe than what is reflected by the ratings currently assigned. Because these ratings do not represent the highest possible evaluations available for this disability during the appeal period, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). All service-connected spine disabilities are rated pursuant to The General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the spinal disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Under the General Rating Formula, ratings related to the thoracolumbar spine are assigned as follows: A 10 percent disability rating is warranted 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. 38 C.F.R. § 4.71a, General Rating Formula. A 20 percent disability 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 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. 38 C.F.R. § 4.71a, General Rating Formula. A 40 percent disability rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. Id. Associated objective neurologic abnormalities are rated separately under an appropriate diagnostic code. Id. at Note (1). 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. Id. at Note (2). 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. Id. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. A December 2011 rating decision granted service connection for lumbar spondylosis and assigned a non-compensable evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5239, effective July 18, 2011. Subsequently, an October 2014 rating decision recharacterized the Veteran's low back disability as degenerative arthritis of the spine and assigned a 10 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5237, effective September 18, 2014. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27 (2014). Here, the hyphenated diagnostic code indicates that the service-connected disability is degenerative arthritis of the spine (5242), and that the rating is determined on the basis of limitation of motion for the residual condition, a lumbosacral strain (5237). See 38 C.F.R. § 4.20 (2014). In determining the propriety of a initial disability ratings, the evidence since the effective date of the grant of service connection will be evaluated and staged ratings will be considered. Fenderson v. Brown, 12 Vet. App. 119, 126-27 (1999). Under VA regulations, Diagnostic Code 5242 refers to Diagnostic Code 5003 (degenerative arthritis), and under 5003 degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242, Note (6). However, when the limitation of motion of the specific joint or joints is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applicable for each such major joint or group of minor joints affected, to be combined, not added, under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, the disability is rated at 10 percent disabling, with x-ray evidence of involvement of two or more major joints or two or more minor joint groups and 20 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitation exacerbations. Id. For the purpose of rating disability from arthritis, the cervical vertebrae, the dorsal vertebrae (also known as the thoracic vertebrae), and the lumbar vertebrae, are considered groups of minor joints. 38 C.F.R. § 4.45(f) (2014). The lumbosacral articulation and both sacroiliac joints together are also considered to be a group of minor joints. Id. At an August 2011 VA thoracolumbar spine examination, the Veteran complained of chronic, localized aching pain and reported he treated his symptoms with nonsteroidal anti-inflammatory drugs and bed rest. He indicated he experienced flare-ups once a month which were exacerbated by heavy lifting, bending over, and prolonged standing. On physical examination, forward flexion was from zero to 90 degrees; extension from zero to 30 degrees; left and right lateral flexion from zero to 30 degrees; right lateral rotation from zero to 30 degrees, and left lateral rotation was not measured. Following repetitive use testing, range of motion was the same as above; there was no additional limitation in range of motion and no functional loss or impairment. There was no localized tenderness or pain to palpation of the joints or soft tissue, guarding, muscle spasms, or muscle atrophy. Muscle strength testing, deep tendon reflexes, and a sensory examination were all normal. The Veteran did not report signs or symptoms of any neurological abnormalities, to include radiculopathy, and straight leg tests were normal. He denied periods of incapacitation or bed rest in the past 12 months. X-rays of the spine revealed degenerative arthritic changes with endplate sclerosis and narrowed L5-S1 disc space. There were large anterior spurs noted at L3-4, and there was no evidence of compression fracture. Mild retrolisthesis of L5 over S1 could not be ruled out and there was slight spondylolisthesis of L5 over S1. Sacroiliac joints were partially fused, pedicles and transverse processes were well visualized, and there was no evidence of compression fracture. The examiner diagnosed chronic low back pain and lumbar spondylolisthesis. Private medical reports dated March 2012 through May 2012 indicated the Veteran sought treatment for low back pain. An April 16, 2012 magnetic resonance imaging (MRI) report found degenerative changes in the lumbar spine at the lumbosacral joint with disc bulges and foraminal and spinal stenosis. At a September 2014 VA thoracolumbar spine examination, the Veteran reported his back pain worsened with activity, standing, and sitting, and that he had no recent physical therapy. He denied flare-ups. On physical examination, forward flexion was from zero to 85 degrees; extension from zero to 25 degrees; left and right lateral flexion from zero to 30 degrees; and left and right lateral rotation from zero to 30 degrees. Following repetitive use testing, range of motion was the same as above. The examination documented functional loss and impairment as pain on movement. There was no localized tenderness or pain to palpation of the joints or soft tissue of the thoracolumbar spine, guarding, muscle spasms, or muscle atrophy. Muscle strength testing, deep tendon reflexes, and a sensory examination were all normal. The Veteran did not report signs or symptoms of any neurological abnormalities, to include radiculopathy, and straight leg tests were normal. He denied periods of incapacitation or bed rest in the past 12 months. No diagnostic testing was accomplished. The examiner diagnosed degenerative arthritis of the spine and indicated the Veteran's back disability did not impact his ability to work. In his September 2013 VA Form 9, the Veteran indicated that over the years his back pain has increased to the point where he was unable to work a full day. He reported he was "out sick with back pain most of the time." He explained that he didn't go the doctor at the first sign of pain because "there [was] always some pain," and he only sought medical attention "when the pain [was] just too much." The Board finds that the evidence of record prior to April 16, 2012, does not show that a compensable disability rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5235-5243. At his August 2011 VA examination, the examiner diagnosed spondylolisthesis. There was no limitation of motion, objective evidence of pain on motion, ankylosis, swelling, guarding, muscle spams, or intervertebral disc syndrome. X-rays revealed evidence of degenerative arthritic changes in one minor joint group, at the lumbosacral joint. Absent limitation of motion, or degenerative changes in two or more major or minor joint groups, a compensable evaluation under the is not available. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5235-5243. As the August 2011 x-rays only revealed arthritis in one minor joint group, a compensable evaluation is unavailable. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The April 16, 2012, MRI report revealed arthritis in the lumbar vertebrae and in the lumbosacral joint, which are defined by VA regulations as two separate minor joint groups. 38 C.F.R. § 4.45(f). Accordingly, beginning April 16, 2012, and prior to September 18, 2014, the Board finds that a 10 percent disability rating is warranted for radiological evidence of arthritis in two minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5239. The Veteran does not meet the criteria for the next higher 20 percent rating as there is no evidence of occasional incapacitating exacerbations. Id. The evidence of record beginning September 18, 2014, demonstrates that a disability rating of 10 percent, but no higher, based on limitation of motion is appropriate. 38 C.F.R. § 4.71a, Diagnostic Code 5237. At his September 2014 VA examination, the Veteran's forward flexion was to 85 degrees and the total combined range of motion of the thoracolumbar spine was 230 degrees. The Board finds the Veteran meets the criteria for a 10 percent disability rating based on limitation of motion of the thoracolumbar spine because his forward flexion was greater than 60 degrees but not greater than 85 degrees, and his combined range of motion was not greater than 235 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Veteran does not meet the criteria for a 20 percent disability rating based on limitation of motion, as he does not exhibit forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, a combined range of motion not greater than 120 degrees, or muscle spasms or guarding severe enough to result in an abnormal gait or spinal contour. Id. He further does not meet the criteria for any of the available disability ratings in excess of 20 percent, as forward flexion of the thoracolumbar spine was not 30 degrees or less and there was no ankylosis. Id. The Veteran also does not meet the criteria for a 20 percent rating based on evidence of arthritis, because while there was evidence of arthritis in two minor joint groups, there were not occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. It is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness, as shown by evidence of discomfort upon movement. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2014); DeLuca v. Brown, 8 Vet. App. 202 (1995). At no point during the appeal period did the Veteran experience any additional functional loss with regard to his range of motion. At his August 2011 VA examination, there was no objective evidence of pain on movement during regular range of motion testing or repetitive testing. At his September 2014 VA examination, the examiner did not find pain on movement during range of motion testing, and although the Veteran indicated pain on movement during repetitive testing, he did not exhibit additional limitation in his range of motion. Accordingly, the Board finds the ratings assigned herein based on limitation of motion are appropriate. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a; DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 36 (2011) (noting that although pain may cause a functional loss, pain itself does not constitute functional loss). The Board has considered whether separate ratings are warranted for any neurological impairments attributed to the Veteran's low back disability, however, the Veteran has not reported and there is no objective evidence of any neurological impairments. All other potentially applicable diagnostic codes relating to the Veteran's low back disability have also been considered, and Board finds the Veteran is not entitled to ratings in excess of the ratings assigned herein. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In this case, the Veteran's statements are competent evidence as to his symptoms because this requires only personal knowledge. See 38 C.F.R. § 3.159(a) (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Barr v. Nicholson, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). His statements are not competent evidence to identify a specific level of disability relating his low back disability to the appropriate diagnostic codes as this requires specialized medical education, training or experience to make those determinations. See 38 C.F.R. § 3.159(a); see also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (lay assertions of medical causation do not constitute competent medical evidence). On the other hand, such competent evidence concerning the nature, extent, and severity of the Veteran's disability has been provided by medical personnel who have examined him during the current appeal and who have rendered opinions in conjunction with the Veteran's statements and clinical evaluations. See 38 C.F.R. § 3.159(a). The medical findings, as provided in the examination reports, directly address the criteria under which his disability is evaluated. As such, the Board finds that the objective medical evidence of record is competent to determine the level of severity of the Veteran's disability and that the Veteran's statements in this regard are not competent. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27. However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where a rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2014). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the assigned staged ratings inadequate. The Veteran's service-connected low back disability has been evaluated as a disease or injury of the spine pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242, 5237, 5239, the criteria of which are found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. Id. As described above, prior to April 16, 2012, there was no limitation in range of motion, no objective evidence of pain on movement during range of motion testing, and x-ray evidence of arthritis in only one minor joint group; these symptoms do not warrant a compensable disability rating. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5235-5243. Beginning April 16, 2012, absent any evidence of limitation of motion, x-rays revealed evidence of arthritis in two minor joint groups, warranting a 10 percent disability rating. Id. Beginning September 18, 2014, there was limitation of range of motion, which met the criteria for a 10 percent disability rating, but the limitation was not severe enough to warrant the next higher 20 percent rating; similarly the Veteran did not meet the criteria for a rating in excess of 10 percent under the diagnostic criteria for arthritis. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5237, 5242. Moreover, throughout the entire period on appeal, there was no evidence of guarding, muscle spasms, ankylosis, or intervertebral disc syndrome, and the evidence does not indicate there were any neurological impairments. While the Veteran alleged in a September 2013 statement that he had lost time from work, there is no probative evidence of record to substantiate this assertion. As discussed above, prior to the initial adjudication of his claim, the Veteran was afforded proper notice of the evidence necessary to establish his claim and could have obtained proof of missed time from work. Furthermore, at his September 2014 VA examination, the examiner reported that the Veteran's back disability did not impact his ability to work. When comparing the Veteran's disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences and symptoms are congruent with the disability pictures represented by the assigned staged ratings. Evaluations in excess of the assigned ratings are provided for certain manifestations of low back disabilities, but the medical evidence demonstrates that those manifestations are not present in this case. Consequently, the Board concludes that the schedular evaluations are adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5237, 5239, 5242; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). As the preponderance of evidence is against assignment of disability ratings in excess of those assigned herein for the Veteran's low back disability, the doctrine of reasonable doubt is inapplicable. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial compensable disability rating for a low back disability prior to April 16, 2012, is denied. An initial compensable disability rating of 10 percent for a low back disability beginning April 16, 2012, and prior to September 18, 2014, is warranted, subject to applicable laws and regulations governing the award of monetary benefits. A disability rating in excess of 10 percent for a low back disability beginning September 18, 2014, is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs