Citation Nr: 1528245 Decision Date: 07/01/15 Archive Date: 07/15/15 DOCKET NO. 10-41 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES Entitlement to an increased rating for lumbosacral strain with traumatic arthritic changes, disc space narrowing, kyphosis, and lumbar canal stenosis, evaluated as 20 percent disabling prior to July 2, 2014, and as 40 percent disabling thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1970 to September 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Subsequently, in a July 2014 rating decision, the Veteran was awarded a 40 percent rating for his lumbosacral strain with traumatic arthritic changes, disc space narrowing, kyphosis, and lumbar canal stenosis, effective July 2, 2014. Therefore, the increased rating constitutes a partial grant of benefits, such that the issue remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993). In February 2015, the Veteran, sitting at the RO, testified at a hearing conducted via video conference with the undersigned Veterans Law Judge. A transcript of the hearing is of record. This appeal was processed using VBMS (the Veterans Benefits Management System) and the Virtual VA paperless processing system. Accordingly, any future consideration of this Veteran's case shall take into consideration the existence of these electronic records. FINDINGS OF FACT 1. Prior to July 2, 2014, the Veteran's thoracolumbar spine disability was productive of subjective complaints of pain and stiffness with objective findings of limitation of motion of the thoracolumbar spine demonstrating flexion to 50 degrees, at worst, with pain from 30 to 50 degrees; there were no incapacitating episodes and no objective findings of additional limitation of motion or function due to painful motion, fatigue, weakness or incoordination. 2. Since July 2, 2014, symptoms of the Veteran's thoracolumbar spine disability have not included ankylosis or incapacitating episodes. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for lumbosacral strain with traumatic arthritic changes, disc space narrowing, and kyphosis, prior to July 2, 2014, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.20, 4.27, 4.71a, Diagnostic Code 5242 (2014). 2. The criteria for a rating higher than 40 percent for lumbosacral strain with traumatic arthritic changes, disc space narrowing, kyphosis, and lumbar canal stenosis, since July 2, 2014, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.20, 4.27, 4.71a, Diagnostic Codes 5299-5242 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and his representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was given the required notice in a letter dated in September 2009. Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent July 2014 supplemental statement of the case. The Board also finds that the duty-to-assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant evidence. VA has obtained VA examinations with respect to the rating issues on appeal. Thus, the Board finds that VA has satisfied the duty-to-assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). I. Analysis Disability ratings are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2014). Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2014). When there is a question as to which of two ratings shall be applied, the higher ratings will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2014). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2014). In general, when an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular diagnostic code is completely dependent on the facts of a particular case. Butts v. Brown, 5 Vet. App. 532 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Separate disabilities arising from a single disease entity are to be rated separately. 38 C.F.R. § 4.25 (2014); Esteban v. Brown, 6 Vet. App. 259 (1994). Pyramiding, or rating the same manifestation of a disability under different diagnostic codes, is to be avoided when rating service-connected disabilities. 38 C.F.R. § 4.14 (2014). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2014). When making a rating determination, VA must consider whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45 (2013); Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's thoracolumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5242. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The use of the "99" series and a hyphenated diagnostic code reflects that there is no specific diagnostic code applicable to lumbar canal stenosis, and it must be rated by analogy. 38 C.F.R. § 4.20. Diagnostic Code 5242 applies to degenerative arthritis of the spine. All diseases and injuries of the spine other than intervertebral disc syndrome, however, are to be evaluated under the general rating formula for diseases and injuries of the spine (general rating formula). Intervertebral disc syndrome is to be rated either under the general rating formula or under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the general rating formula, a 40 percent rating is warranted where forward flexion of the thoracolumbar spine 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. The only higher schedular ratings under the general rating formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for ankylosis of the entire spine. In addition, the only higher schedular rating available under the formula for rating intervertebral disc syndrome based on incapacitating episodes is a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 to the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episodes defines an incapacitating episode as 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. Prior to July 2, 2014 The Veteran was afforded an October 2009 VA examination in connection with his claim for an increased rating of his lumbar spine disability. He reported that his pain had become progressively worse associated with weakness, stiffness, fatigue, and lack of endurance by the end of the day. He described the pain as chronic, dull aching, at times squeezing and very sharp with radiation of pain into the lower extremities. Pains were made worse with prolonged walking, standing, sitting, repetitive bending, and any type of climbing of stairs. Weather changes, especially in cold and damp climates, made his pain worse. He took tramadol and Motrin for the pain and inflammation. His pain was within the lumbar segment of his back, level of L4-L5 with radiation of pain into both buttock areas. He did not have any bowel or bladder incontinence. He did not use or need any assistive devices. He ambulated with a cane. He was currently employed. Examination of the spine revealed normal lordotic curvature, slight kyphosis, no scoliosis, no weakness, and no spasms. He did have tightness at L4-L5. Range of motion of the thoracolumbar spine revealed forward flexion to 50 degrees with pain from 30 to 50 degrees. Extension was to 10 degrees with pain. Left and right lateral flexion was to 10 degrees without pain and 10 to 20 degrees with pain. Left and right rotation was to 10 degrees without pain and 10 to 20 degrees with pain. After repetitive forward flexion, backward extension, lateral flexion left to right, rotation left to right five times, testing for pain, weakness, fatigability, and incoordination showed no change. He had the same range of motion as noted above. Increased pains were noted on examination. The Veteran denied periods of flare ups and his back pains were chronic. Neurological examination revealed negative straight leg raises, bilaterally. Muscle strength was normal and there was no muscle atrophy noted on examination. The Veteran further denied any incapacitating periods in the past 12 months. He was diagnosed with lumbosacral strain with traumatic arthritis and changes with degenerative disc disease and kyphosis. A December 2013 VA treatment record reflects the Veteran's complaints of still having typical back pain which was managed by prescribed medication. He stated that his pain was a 10/10. He denied numbness and tingling in his bilateral lower extremities, loss of muscle strength, change in bladder and bowel function, fever, or chills. Upon February 2014 VA treatment, the Veteran received an "uneventful" lumbar epidural steroid injection. An April 2014 VA treatment record shows that the Veteran complained of low back pain with left L-5 radiculopathy to the foot and left groin pain. Accompanying MRI results were negative for findings of radiculopathy. The diagnosis was multilevel degenerative disc disease of the lumbar spine, more prominent at L3-L4, L4-L5, and L5-S1 levels. A June 2014 VA treatment record indicates that the Veteran had complaints left hip pain but also bilateral leg radicular symptoms. An MRI of the lumbar spine was again negative for radiculopathy. The diagnosis was the same as in April 2014. A later June 2014 VA treatment record shows that the Veteran had a mixed pain picture to include significant arthritis and stenosis in his lumbar spine. He also presented with a mixed pain picture to include lumbar radiculopathy. After careful consideration of all the evidence and the pertinent criteria for rating disabilities of the spine, the Board finds that the preponderance of the evidence is against a rating higher than the current 20 percent for the service-connected lumbar spine disability under Diagnostic Code 5242. Upon application of the criteria for limitation of motion to the findings reflected on VA examination and VA treatment records (of which range of motion testing was not performed), the Veteran does not meet the criteria for the next higher rating, 40 percent, under the General Rating Formula for Diseases and Injuries of the Spine. An MRI of the lumbar spine in September 2009 showed mild to moderate L5-S1 spinal canal stenosis due to retrolisthesis and disc bulge, moderate L3-L4 spinal canal stenosis due to disc bulge and facet degenerative changes, mild L4-L5 and L2-L3 spinal canal stenosis, and mild right L3-L4 and moderate right L2-L3 neural foraminal narrowing. Despite what imaging studies showed, the Veteran's lumbar spine disability for the period considered in this appeal was demonstrated to have been productive of complaints of pain and stiffness and with objective findings of limitation of motion of the thoracolumbar spine demonstrating flexion to 50 degrees with pain from 30 to 50 degrees at worst. As indicated, these findings were made in consideration of painful motion. There was no documented ankylosis at any time. In short, the foregoing findings do not more nearly approximate or equate to forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, which is the criteria for the next higher rating, even considering functional loss due to pain or painful movement, weakness, atrophy, swelling, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing under 38 C.F.R. §§ 4.40, 4.45, 4.59, and repetitive motion (factors of which the October 2009 VA examiner took into consideration). While there was objective evidence of pain on range of motion, as seen at the time of the October 2009 VA examination, the pain does not rise to the level of functional loss that more nearly approximates or equates to forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The VA examiner specifically noted that DeLuca issues were considered, including pain, fatigue, and incoordination, but that there was no additional limitation of motion loss after repetitions. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40). Accordingly, the preponderance of the medical evidence of record does not demonstrate that the Veteran experienced pain or other symptoms which caused additional limitations sufficient to warrant a rating in excess of 20 percent for the Veteran's lumbar spine disability for the period prior to July 2, 2014. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2014); DeLuca v. Brown, 8 Vet. App. 202 (1995). Accordingly, a rating in excess of 20 percent is not warranted under the General Rating Formula for the orthopedic manifestations of the Veteran's service-connected lumbar spine disability for the period prior to July 2, 2014. Since July 2, 2014 Neither the VA treatment notes nor July 2014 VA examination report indicated that there was unfavorable ankylosis of the entire thoracolumbar spine or the entire spine. Rather, there was no indication of ankylosis in any VA treatment records, the July 2014 VA examination report, or the Veteran's statements. On the July 2014 VA lumbar spine examination, range of motion figures were given for each plane of motion, with constant pain throughout each, and no ankylosis was noted. The Veteran did not offer any evidence that he had incapacitating episodes as defined in the applicable regulation. The examiner found that the Veteran did not have intervertebral disc syndrome. He denied having flare-ups that impacted the function of his lumbar spine. He reported that his pain was constant and worsened with walking, standing, and sleeping. He indicated that the pain radiated to the buttocks and down to the posterior thighs. The Veteran was unable to perform repetitive-use testing with three repetitions due to pain and stiffness. The examiner noted that less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing were contributing factors that resulted in functional loss of his lumbar spine after repetitive use. The Veteran did not have any localized tenderness or pain to palpitation of joints and/or soft tissue. He also did not have guarding or muscle spasms. There was no indication of muscle atrophy. He did not report the use of any assistive device. In regards to the functional impact of the Veteran's lumbar spine disability on his ability to work, the examiner indicated that the Veteran could lift 10 pounds once every 15 minutes. He was also able to walk 100 feet at one time and could walk for two minutes continuously before having to rest for two minutes during an 8 hour day. The Veteran was also able to stand for two minutes and he could sit for any amount of time. The examiner lastly noted that the Veteran was able to sit or stand during an 8 hour day for any amount of time with rest periods. He was diagnosed with lumbosacral strain with traumatic arthritic changes, disc space narrowing, kyphosis, and lumbar canal stenosis. Lumbar canal stenosis was noted to be a progression of his original service-connected diagnosis. At the February 2015 Board hearing, the Veteran testified to experiencing continuous back pain. He stated that he was unable to stand for a long time and used a cane for support when walking. Upon careful review, the Board finds that as there was no indication of ankylosis of the thoracolumbar spine or any part of the spine, no evidence of an intervertebral disc syndrome, or incapacitating episodes as defined in the applicable regulation throughout the appeal period, a rating higher than 40 percent is not warranted for the Veteran's thoracolumbar spine disability since July 2, 2014. In addition, as noted earlier, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. See DeLuca, Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2004). In this case, however, the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis or incapacitating episodes. The Court has indicated that the cited regulations are not for application in these circumstances. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The Board will therefore not consider the DeLuca factors for this period on appeal. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran's symptoms have not more nearly approximated the criteria for a rating higher than 40 percent at any time during the appeal period. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for an increased rating for lumbosacral strain with traumatic arthritic changes, disc space narrowing, kyphosis, and lumbar canal stenosis must be denied. See 38 U.S.C.A. § 5107(b). For All Periods With regard to the neurologic manifestations of the Veteran's lumbar spine disability, the evidence shows that there have been no such associated objective neurologic abnormalities secondary to his service-connected lumbar spine disability. Although VA treatment records show that the Veteran complained of bilateral leg radicular symptoms, the MRI results noted within the VA treatment records and the VA examination reports of record do not show any objective symptoms, findings, or diagnosis of radiculopathy to support the complaints noted within VA treatment records. Moreover, the Veteran denied any complaints of radicular pain or any other signs or symptoms due to radiculopathy during the July 2014 VA examination. Additionally, the examiner specifically indicated that there were no neurological abnormalities. The Veteran also indicated that his spine disability did not affect his bladder or bowels. There were no neurologic findings on the October 2009 VA examination, muscle strength testing was a normal 5/5 of the upper and lower extremities, deep tendon reflexes were grade 1/2, and sensory examination was normal. Straight leg raising was negative bilaterally and there was no radicular pain or any other signs or symptoms due to radiculopathy. Therefore, additional separate ratings for neurologic manifestations of the Veteran's lumbar disability are not warranted. 38 C.F.R. § 4.71a, General Rating Formula (2014). To the extent that the examination findings conflict with the Veteran's statements, the Board finds that the specific findings of the trained health care professionals who conducted these examinations are of greater probative weight than the more general lay statements of the Veteran. The Board has also considered evaluating the Veteran's lumbar spine disability under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, during all periods on appeal. The evidence of record does not show that the Veteran has ever experienced symptoms requiring bed rest prescribed by a physician at any point during any of the periods on appeal. Accordingly, the medical evidence of record does not show that the Veteran has ever been prescribed bed rest by a physician for a period of at least two weeks in any one year period. Therefore, a rating in excess of those already assigned is not warranted at any point during the periods on appeal under the Formula for Rating Intervertebral Disc Syndrome. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome (2014). This claim has also been reviewed with consideration of whether further staged ratings would be warranted. While there may have been occasional fluctuations of the Veteran's lumbar spine symptoms, the evidence shows no distinct periods of time when his symptoms have varied to such an extent that a rating in excess of the currently assigned ratings would be warranted for under any diagnostic code. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.344 (2014); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render his disabilities ratings for his lumbar spine disability inadequate. The Veteran's lumbar spine disability was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2014), the criteria of which are found by the Board to specifically contemplate the Veteran's level of disability and symptomatology. The Veteran's lumbar spine disability is manifested by the symptoms listed above. When comparing that disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are adequately contemplated by the disability ratings currently assigned for his lumbar spine disability. Ratings in excess of the currently assigned ratings are provided for certain manifestations of lumbar spine disabilities, but the medical evidence does not show that those manifestations are present. The Board finds that the criteria for the currently assigned ratings for the Veteran's lumbar spine disability reasonably describe the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular ratings are adequate and no referral is required. The Board finds that the evidence does not show frequent hospitalization or marked interference with employment. While the evidence shows that the Veteran's lumbar spine disability impacts his employment, the July 2014 VA examiner determined that the Veteran can lift 10 pounds once every 15 minutes. He was also able to walk 100 feet at one time and could walk for two minutes continuously before having to rest for two minutes during an 8 hour day. The Veteran was also able to stand for two minutes and he could sit for any amount of time. The examiner lastly noted that the Veteran was able to sit or stand during an 8 hour day for any amount of time with rest periods. There is no evidence of record that the Veteran's occupational abilities are impacted beyond the level which is already contemplated by the ratings assigned for his lumbar spine disability. VAOGCPREC 06-96 (1996), 61 Fed. Reg. 66749 (1996); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2014). The Board finds that the preponderance of the evidence is against the claim for increased ratings for a lumbar spine disability. Therefore, the claim is denied. 38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Massey v. Brown, 7 Vet. App. 204 (1994). ORDER Entitlement to a rating higher than 20 percent for lumbosacral strain with traumatic arthritic changes, disc space narrowing, and kyphosis, prior to July 2, 2014, is denied. Entitlement to a rating higher than 40 percent for lumbosacral strain with traumatic arthritic changes, disc space narrowing, kyphosis, and lumbar canal stenosis, since July 2, 2014, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs