Citation Nr: 1526693 Decision Date: 06/23/15 Archive Date: 06/30/15 DOCKET NO. 10-47 619 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating for low back intervertebral disc syndrome (IVDS) with degenerative joint disease (DJD), currently evaluated as 20 percent disabling. 2. Entitlement to service connection for cervical spine disability, to include as secondary to service-connected low back IVDS with DJD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1973 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2010 and March 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In March 2015, the Veteran and his wife testified before the undersigned Veterans Law Judge at the RO in San Antonio, Texas. A transcript of that proceeding is of record. In March 2015, the Veteran waived his right to have newly submitted evidence initially considered by the Agency of Original Jurisdiction (AOJ) (VBMS). Thus, new evidence is properly before the Board to consider in the first instance. The issue of entitlement to service connection for cervical spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT Low back IVDS with DJD manifests in a moderate limitation of motion and subjective complaints of pain, with forward flexion greater than 30 degrees; neither ankylosis nor incapacitating episodes of IVDS lasting at least four weeks during a 12 month period have been shown. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for low back IVDS with DJD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits pursuant to 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. VA's duty to notify has been satisfied through a notice letter dated November 2009, which fully addressed all notice elements. This letter informed the Veteran of what evidence was required to substantiate his claim for an increased rating and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. The Board, therefore, finds that all notice required by the Veteran Claims Assistance Act (VCAA) and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claims, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records are associated with the claims file. All post-service treatment records and reports identified by the Veteran related to the claims decided herein have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist in locating additional records has been satisfied. The Veteran was provided with VA examinations to assess the severity of his low back IVDS with DJD in December 2009 and May 2014. The Board finds these examinations are adequate for deciding the issue of entitlement to a higher rating for low back IVDS with DJD on appeal, as both involved a review of the Veteran's pertinent medical history, a clinical evaluation of the Veteran, a review of relevant symptomatology related to the given disability. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Indeed, the Veteran has not argued that those VA examinations are somehow inadequate. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Merits Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2014). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2014); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2014); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2014); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10 (2014). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's service-connected low back IVDS with DJD is rated as 20 percent disabling under Diagnostic Code 5237. A 20 percent evaluation is warranted where there is evidence of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or a 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 evaluation requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, 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) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated 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. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2014); see also 38 C.F.R. § 4.45 (2014). Turning to the evidence of record, the Veteran was afforded a VA examination in December 2009. There, the Veteran displayed flexion to 45 degrees, where pain began. Extension was to 30 degrees, where pain began. Right lateral flexion was to 15 degrees, where pain began. Left lateral flexion was to 20 degrees, where pain began. Right rotation was to 15 degrees, where pain began. Left rotation was to 20 degrees, where pain began. Repetitive use testing revealed no further limitation of motion. Neurological examination of the spine was normal. There were no signs of lumbar IVDS with chronic and permanent root involvement. X-rays showed lumbar degenerative arthritis. The symptoms of the Veteran's low back disability were: pain, stiffness, spasms, decreased motion, and weakness. The examiner noted that the effect of the Veteran's low back disability on his usual occupation was mild. The effect of the condition on the Veteran's daily activities was none. A November 2009 statement from the Veteran noted that the Veteran is in pain sporadically. He also stated that sometimes it is difficult to bend. The Veteran stated that his low back disability prevents him from exercising. The Veteran stated that he is no longer able to supplement his income due to his back pain. In November 2010, the Veteran completed a Claimant Medical History detailing his symptomatology. The Veteran reported difficulty walking. He stated that he experiences: stiffness, fatigue, spasms, decreased motion, paresthesias, numbness, weakness, bowel problems, erectile dysfunction, and bladder problems. The Veteran reported constant back pain. He reported that occasional flare ups cause him to miss work. He stated that he cannot bend over due to stiffness and pain. He reported being incapacitated for three days in May 2010 and five days in November 2010. He again reported an inability to supplement his income with jobs outside his usual occupation. The Veteran was afforded a VA examination in January 2011 and reported constant low back pain. He also reported stiffness, fatigue, spasms, decreased motion, paresthesia and numbness. The Veteran indicated that he experiences bladder problems in relation to his low back disability and that low back pain is moderate in severity. The Veteran reported pain traveling to his legs and arms and claimed that during flare ups he is unable to bend over. The Veteran reported being incapacitated due to his low back disability for three days in May 2010. He also reported being incapacitated for five days in May 2010. The Veteran reported an inability to walk long distances due to his low back disability and a right foot disability. The Veteran reported an inability to work in air conditioning repair, electrical repair, plumbing, or carpentry. Range of motion testing for the thoracolumbar spine was not performed. Rather, range of motion testing for the cervical spine was performed at the January 2011 VA examination. A March 2011 VA treatment record (VBMS) noted low back pain with stiffness and trouble walking and standing. No radiation of pain to the Veteran's extremities was noted. There was no bladder or bowel dysfunction. In his November 2011 Substantive Appeal, the Veteran reported low back pain. He also stated that he experiences radiating pain to his legs and feet. Additionally, he reported incapacitating episodes of IVDS occurring approximately three to four days per week occurring four to five times per year. An August 2012 VA treatment record (VBMS) noted that the Veteran rated his low back pain as 7 out of 10. A September 2012 VA treatment record (VBMS) noted that the Veteran rated his low back pain as 8 out 10. The Veteran described stabbing pain and tightness. The Veteran stated that back pain impacts his concentration, emotions, enjoyment of life, mood, physical activities, sleep and walking. A September 2012 VA treatment record (VBMS) notes continued chronic low back pain. The Veteran reported an inability to get out of bed or dress his lower extremities. The Veteran rated his low back pain as 9 out of 10. An October 2012 VA treatment record (VBMS) noted that imaging of the Veteran's spine showed mild lumbar spondylosis. A March 2013 VA treatment record (VBMS) noted that the Veteran requested an MRI of his lumbar spine. The Veteran rated his pain as 6 out of 10. In April 2013, an MRI was conducted. That MRI showed no obvious subluxation, fracture, lytic or blastic bone processes. Degenerative changes and facet arthropathy were shown, as was atherosclerotic disease. The Veteran submitted a statement dated April 2013. He explained that he retired from the U.S. Postal Service after 31 years. He stated that stooping, bending, lifting and stress caused him to retire. He stated that he was offered an early retirement, which he accepted. The Veteran was afforded a VA examination in May 2014. Flare ups of the Veteran's low back disability were noted. However, the examiner explained that while flare ups and repetitive use cause increased low back pain, no fatigue, incoordination or further loss of range of motion are caused by flare ups or repetitive use. The Veteran displayed forward flexion to 80 degrees, which is the point where there was objective evidence of pain. He displayed extension to 30 degrees with no objective evidence of painful motion. He displayed lateral flexion to 15 degrees, the point where there was objective evidence of painful motion. Left lateral flexion was to 20 degrees, with no objective evidence of painful motion. There was no further limitation of motion upon repetitive use testing. The Veteran's low back disability was described as causing: less movement than normal, excess fatigability, pain on movement, interference with sitting, standing and/or weight-bearing. Sensory examination of the Veteran's lower extremities was normal. There was no radiculopathy present upon examination. There was no ankylosis. No neurologic abnormalities were noted. IVDS was noted. Incapacitating episodes of IVDS for less than two weeks in the past year were noted. Arthritis was documented. The examiner explained that the Veteran is limited to no impact activity and weight bearing for less than one hour at a time. The Veteran is not able to perform repetitive bending. The Veteran is limited to lifting moderate amounts non-repetitively due to low back pain. The Veteran is limited to standing for less than one hour at a time due to low back pain. In October 2014, Dr. L.M. ordered that X-rays of the Veteran's spine be conducted (VBMS). X-rays showed a loss of lumbar lordosis. Mild degenerative changes were seen in the form of marginal osteophytes. Vertebrae were otherwise unremarkable in height, alignment, and marrow signal intensity. Mild spondylotic and degenerative arthritic changes were noted. Mild multilevel disc disease of the lumbar spine was noted. Mild narrowing of the spinal canal at L3-L4 to L5-S1 levels was noted. Mild narrowing of the bilateral neural foramina at L3-L4 to L5-S1 levels was noted. Impingement of right S1 traversing nerve root at L5-S1 level was noted. The Veteran submitted a statement dated March 2015. In that statement, the Veteran provided a timeline of his treatment for his low back disability. He also argued that because his low back disability has worsened since he was first awarded service connection for a low back disability, an increased rating should be granted. In March 2015, the Veteran and his wife testified before the undersigned Veterans Law Judge. The Veteran explained that he retired from the postal service in January 2013 due to an inability to lift and bend while working. See Board Hearing Transcript at 3. The Veteran's wife testified that the Veteran has difficulty performing various tasks at home due to his low back disability. See id at 6. The Veteran stated that he is unable to walk for longer than 30 minutes. See id at 10. The Veteran's wife also testified that the Veteran's low back disability makes it difficult for the Veteran to dance. See id at 24. In March 2015, Dr. L.M. ordered that a CT scan of the lumbar spine be performed (VBMS). Lumbar spine was in anatomic alignment. Mild right-sided and moderate left-sided degenerative sacroiliitis was shown. There was mild degenerative disc disease at L5-S1. A disability rating in excess of 20 percent for the Veteran's low back disability is not warranted. There is simply no evidence of any ankylosis of the thoracolumbar spine as is required for a rating in excess of 20 percent under Diagnostic Code 5237. See May 2014 VA Examination Report (Veteran does not suffer from ankylosis). Additionally, there is no evidence that forward flexion of the thoracolumbar spine is limited to 30 degrees. See May 2014 VA Examination Report (forward flexion to 80 degrees); December 2009 VA Examination Report (forward flexion to 45 degrees). Indeed, both VA examiners explained that neither pain nor repetitive use caused the Veteran's forward flexion to be limited to 30 degrees. See DeLuca v. Brown, 8 Vet. App. 202. Likewise, there is no evidence that flare ups limit flexion to 30 degrees or less. See May 2014 VA Examination Report; December 2009 VA Examination Report. Without any evidence of ankylosis or forward flexion limited to 30 degrees, a rating in excess of 20 percent is not warranted under Diagnostic Code 5237. A disability rating in excess of 20 percent is not warranted under the Formula for Rating IVDS Based on Incapacitating Episodes. As stated above, a rating in excess of 20 percent under that formula requires incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. During no 12 month period has it been shown that the Veteran's IVDS caused incapacitating episodes of at least 4 weeks. Indeed, the most favorable evidence to the Veteran, his own statement, shows that the Veteran purportedly experienced four to five periods of incapacitating episodes, each of which lasted approximately four days. See November 2010 Claimant Medical History. Nonetheless, there is no evidence that the Veteran was ordered by a physician to remain on bedrest during that time, as required for a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Indeed, the May 2014 VA examiner explained that the Veteran's IVDS caused incapacitating episodes lasting less than two weeks during the past twelve months. Simply, there is no evidence that the Veteran's IVDS has caused incapacitating episodes requiring bedrest for at least four weeks during any 12 month period. As such, a rating in excess of 20 percent is not warranted under Diagnostic Code 5243 pertaining to IVDS. While the Veteran has explained that he experiences pain in his lower and upper extremities, see November 2010 Claimant Medical History, there is no evidence that the Veteran experiences any neurologic abnormalities related to his service-connected low back disability. Indeed, the objective evidence of record, does not show any neurological abnormalities associated with the Veteran's low back disability. See May 2014 VA Examination Report (no neurological abnormalities); January 2011 VA Examination Report (normal neurological examination); December 2009 VA Examination Report (normal neurological examination). There is no objective medical evidence showing that the Veteran suffers from any neurological abnormalities associated with his service-connected low back disability. As such, a separate rating for a neurological abnormality is not warranted. The Veteran argues that his low back disability is worse than when he was first awarded service connection and, therefore, he should receive an increased rating. See March 2015 Statement of the Veteran. While the Veteran's low back disability may have worsened since he was first awarded service connection, his symptomatology does not meet the criteria necessary for a rating in excess of 20 percent. Indeed, the criteria for a rating in excess of 20 percent under Diagnostic Codes 5237 and 5243 are objective. As discussed above, the Veteran does not meet the objective criteria under any diagnostic code for a rating in excess of 20 percent. While the Veteran's low back disability may have worsened, there is no evidence that it has objectively worsened to the extent that a rating in excess of 20 percent is warranted under any applicable diagnostic code. The record does not establish that the rating criteria are inadequate for rating the Veteran's service-connected low back disability. The Veteran's disability is manifested by reduced range of motion and some pain. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). In addition, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). While the Veteran does experience some difficulty walking and lifting heavy items, it is not shown that the Veteran's service-connected low back disability alone renders him unemployable. Indeed, while the Veteran low back disability causes him some impairment in performing physical tasks, see May 2014 VA Examination Report, there is no evidence that the Veteran is unable to securing and maintain a job that does not require the Veteran to perform such physical tasks. To that end, there is no evidence that the Veteran's low back disability alone renders him unable to work in a position where physical labor is not required. Thus, while the Veteran reportedly retired early due to his low back disability, the evidence of record does not show that the Veteran is unable to secure and maintain substantially gainful employment where he is not required to perform physical labor. Thus, a TDIU is not warranted. ORDER Entitlement to a disability rating in excess of 20 percent for low back IVDS with DJD is denied. REMAND Regarding the claim for service connection for degenerative arthritis of the cervical spine, the Veteran was afforded a VA examination in January 2011. There, the examiner opined that the Veteran's cervical spine disability was not related to his service-connected low back disability. As rationale, the examiner explained that the Veteran's cervical spine disability is related to the aging process. Additionally, the examiner explained that evidence of IVDS could not be substantiated by physical examination findings. The January 2011 examiner did not address the theory of aggravation in his January 2011 opinion. Likewise, given the fact that the Veteran was injured lifting items in service, an opinion as to whether the Veteran's current cervical spine disability is related to his period of service should also be obtained. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the case is REMANDED for the following action: 1. Return the claims file, including a copy of this remand, to the VA examiner who conducted the January 2011 VA examination for an addendum opinion. If the January 2011 VA examiner is unavailable, the claims file should be forwarded to another qualified examiner. If it is determined an additional examination of the Veteran is necessary, one is to be arranged. The entire claims file, including any electronic records, must be reviewed by the examiner in conjunction with the examination. The examiner is requested to opine as to the following: a. Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's cervical spine disability had its clinical onset during service or is otherwise related to service? b. Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veterans service-connected Low back IVDS with DJD aggravated his cervical spine disability? If aggravation is found, identify the baseline level of disability prior to the aggravation and the permanent, measurable increase in severity caused by service-connected disability. A complete rationale for all opinions should be provided. If the examiner is unable to provide the requested opinion without resort to speculation, the reasons and bases for this conclusion should also be provided. 2. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefit sought on appeal is not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs