Citation Nr: 1549572 Decision Date: 11/24/15 Archive Date: 12/03/15 DOCKET NO. 09-11 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased rating for mechanical low back pain with degenerative disc disease and intervertebral disc syndrome (IVDS) (hereinafter back disability), rated as 20 percent disabling prior to March 22, 2012 and 60 percent disabling thereafter. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Aaron Moshiashwili, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1991 to August 1991 and from October 1992 to October 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. An August 2012 rating decision increased the 20 percent rating to 60 percent effective March 22, 2012. The Veteran was scheduled to present testimony at the Board's Central Office in Washington, DC, before a Veterans Law Judge in March 2013. The Veteran cancelled his hearing request in a February 2013 statement. See 38 C.F.R. § 20.704(d). In April 2013, the Board remanded this case for further development, to include development to determine if the Veteran had any chronic bowel, bladder, or erectile dysfunction due to his service-connected back disability. The Board also remanded to ascertain whether the left and right lower extremity sciatic radiculopathy, each granted in an August 2012 rating decision and each assigned a 10 percent evaluation effective March 22, 2012, should have an earlier effective date. A December 2014 rating decision granted service connection for functional incontinence with a 60 percent evaluation, intermittent erectile dysfunction with a non-compensable evaluation, and special monthly compensation based on loss of use of a creative organ effective December 23, 2007. Additionally, an effective date of December 23, 2007 was granted for service connection for the left and right lower extremity sciatic radiculopathy. In a January 2015 statement, the Veteran reported that he agreed with the December 2014 rating decision, with the exception of the special monthly compensation (SMC) level and the failure to consider whether a separate rating for bowel incontinence was warranted. In particular, the Veteran asserted that he should be considered for SMC based on aid and attendance. In a June 2015 letter, the Veteran withdrew the claim for service connection related to bowel dysfunction and request for SMC based on aid and attendance. A July 2015 letter to the Veteran confirmed that these issues have been withdrawn. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (withdrawal of a claim for VA disability benefits is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.) Lastly, the Board remanded a claim for a total rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009). In particular, the RO was to ascertain whether the Veteran wished to pursue a claim for TDIU. Accordingly, VA sent a letter in May 2013 asking him if it was his intention to pursue a TDIU claim and asked him to complete a VA Form 21-8940. He did not return this form and a December 2014 deferred rating decision reflects that the RO considered this lack of response as an indication that the Veteran did not wish to pursue the claim for TDIU. The Board observes that the Veteran has addressed the other actions that the RO undertook in connection with the remand and concludes that if he wished to pursue a claim for TDIU, he would have completed the Form 21-8940. Accordingly, the Board considers a claim for TDIU withdrawn. Thus, the only issue remaining on appeal is listed on the title page. FINDING OF FACT The Veteran's back disability has been characterized for the duration of the claim by forward flexion of the thoracolumbar spine greater than 30 degrees, no ankylosis, and without periods of acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for a back disability prior to March 22, 2012, and in excess of 60 percent thereafter are not met. 38 U.S.C.A. §§ 1110, 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159(b)(2015). The notice requirements regarding an increased rating were accomplished in a March 2008 letter that was provided before the adjudication of the claim. The letter notified the Veteran of the information and evidence needed to substantiate his increased rating claim. He was told that the evidence must show that his service-connected disability had gotten worse. The letter also provided notice of the type of evidence necessary to establish a disability rating or effective date for the disability under consideration, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Accordingly, the Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent post-service treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained service treatment records, private and VA treatment records, and lay statements. The Veteran was afforded VA compensation and pension examinations germane to his claim on appeal in April 2008, March 2012, and November 2014. These examinations were adequate because the examiners based their opinions upon consideration of the Veteran's prior medical history, described the disabilities in sufficient detail so that the Board's evaluations of the disabilities will be fully informed, and supported all conclusions with analyses that the Board could consider and weigh against contrary opinions. Additionally, the VA examinations of record fully describe the functional effects caused by the Veteran's disabilities. The Board notes that the Veteran stated in an April 2008 letter that he felt that the April 2008 examination was inadequate. The Veteran claims that he felt the examiner was "impersonal with me," that he did not like statements the examiner made, and that he did not like the content of the examination, specifically the range of motion testing. The Veteran claims that the examiner did not write down some of the Veteran's statements, and that he did not interpret the Veteran's statement that he had urinary and fecal incontinence "when my back is really bad" in the way the Veteran would have preferred. The Board finds, on review of the examination report, that the examination is adequate upon which to base a determination. The examiner based his examination on a consideration of the Veteran's previous history and examinations, described the disability in sufficient detail so that the Board's evaluation is a fully informed one, and provided a reasoned explanation for the conclusions contained in the report. This claim was remanded by the Board for additional development in April 2013. In a December 2014 letter, the Veteran claims that "the RO failed to follow/complete the requested instructions from the BVA." The Board finds substantial compliance with the April 2013 remand. With regard to the remaining issue on appeal, VA medical treatment records dated after April 25, 2011 were added to the Veteran's file. The Veteran had an examination in November 2014. D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998). For the foregoing reasons, the Board concludes that VA made all reasonable efforts to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Analysis Disability ratings are determined by applying a schedule of ratings that is 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. 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 to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, 'pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.' Rather, pain may result in functional loss, but only if it limits the ability 'to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.' Id., quoting 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2015). Under Diagnostic Code (DC) 5243, Intervertebral Disc Syndrome is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine, or on the total duration of incapacitating episodes over the past twelve months, whichever method results in the higher rating. See 38 C.F.R. § 4.71a, DC 5243. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. Under the General Rating Formula for Diseases of the Spine, a 20 percent rating is warranted where there is "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." DC 5243. A 40 percent rating is warranted where there is forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted where there is "unfavorable ankylosis of the entire thoracolumbar spine." Id. A 100 percent rating is warranted where there is "unfavorable ankylosis of the entire spine." Id. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, rating is based on the total duration of incapacitating episodes over the course of a year. 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. With incapacitating episodes having a duration of at least one but less than two weeks, a 10 percent rating is warranted. Id. With a duration of at least two but less than four weeks, a 20 percent rating is warranted. Id. With a duration of at least four but less than six weeks, a 40 percent rating is warranted. Id. With a duration of at least six weeks, a 60 percent rating is warranted. Id. The General Rating Formula for Diseases and Injuries of the Spine expressly contemplates pain as a symptom of spinal disease. Id. ("With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.") The Veteran is currently in receipt of a 20 percent rating for IVDS from the start of the current claim filed December 23, 2007, and a 60 percent rating from March 22, 2012 onwards. Prior to March 22, 2012, forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, was not shown. Further, prior to March 22, 2012, incapacitating episodes with a duration of at least four weeks but less than six weeks was not shown. In this regard, the Veteran underwent VA treatment on a frequent basis for pain management and for depression, with follow ups for his spinal issues. During the February to April 2010 time frame, for example, the Veteran was briefly hospitalized (not in connection with the issue on appeal), followed by intensive observation by VA clinicians. During that time period, the Veteran has multiple reports pertaining to his condition every week and in some cases multiple reports per day. There is no evidence, however, of incapacitating episodes requiring doctor-prescribed bedrest or treatment by a doctor, beyond the Veteran's normal pain management regimen, either in this specific, closely-watched three month period, or anywhere else in the pre-March 2012 records. In the Veteran's April 2008 Compensation and Pension (C&P) examination, the examiner noted that there were no incapacitating episodes of spine disease. The Veteran was able to walk a fourth of a mile and had a slow, yet normal gait. There was no finding of ankylosis of the thoracolumbar spine. The Veteran had full range of motion to flexion, extension, bilateral lateral flexion and rotation, with no additional objective evidence of pain on active range of motion. There was evidence of pain following repetitive motion. There was no spasm, atrophy, guarding, tenderness, or weakness. The VA examiner noted that the Veteran seemed to produce an "exaggerated pain response" during the range of motion tests. The examiner observed that the Veteran was able to dress and undress without difficulty, had no problem sitting with legs out to 90 degrees, was able to step over a 19 inch high chair, and could toe and heel walk without difficulty, but once the examiner began the range of motion tests, the Veteran exhibited a range of motion limited to 10 degrees. The examiner summarized that non examination rotational movements were within normal range. Additionally, while the records above make it clear that the Veteran is being treated for pain, none of them - including the intense observation recorded while the Veteran was hospitalized - give any indication of problems moving as extreme as suggested by the Veteran's range of motion tests indicated. In a February 19, 2010 record from the Veteran's hospitalization, for example, a note made shows that the Veteran "shook head no to pain" and "turns self in bed w/o difficulty." The Board therefore finds that the Veteran, in the period prior to March 22, 2012, had a range of motion not characterized by forward flexion of the thoracolumbar spine limited to 30 degrees or less. This finding is based on the VA examiner's note that the Veteran was exaggerating his pain response, the examiner's observation that the Veteran seemed to have full range of motion at other times, and other evidence in the record tending to show that the Veteran's range of motion was within normal limits. Additionally, the Board finds that during this time period, the Veteran did not have ankylosis of the spine, and suffered no incapacitating episodes requiring doctor-prescribed bedrest or treatment by a doctor. Therefore, the Board finds that the criteria for a rating greater than 20 percent for a back disability for the period prior to March 22, 2012 are not met. 38 C.F.R. §§ 4.7, 4.71a DC 5243. After reviewing all of the clinical evidence and subjective complaints, the Board finds that the Veteran's symptoms have at no point resulted in unfavorable ankylosis of the entire spine, and a rating above 60 percent as of March 22, 2012 is not warranted. A rating above 60 percent would require "unfavorable ankylosis of the entire spine." The Veteran's March 2012 examination reveals that the Veteran has forward flexion to 50 degrees, and the Veteran's November 2014 examination specifically notes that there is no ankylosis of the spine. A 60 percent rating is the maximum for incapacitating episodes. Although the Veteran reported being "bedridden" with flare ups for a total of 3-4 months per year, the Board affords his self-report little probative value as there is no evidence in the record that a doctor has prescribed bed rest in connection with his back disability. Therefore, the criteria for a rating above 60 percent from March 22, 2012 onwards are not met. 38 C.F.R. §§ 4.7, 4.71a DC 5243. Accordingly, the Board concludes that reasonable doubt does not apply, and the criteria for a rating above 20 percent for the Veteran's back disability prior to March 22, 2012, and 60 percent thereafter have not been met. Extraschedular In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria explicitly contemplate the Veteran's symptomatology as described above, to include limitation of motion and pain. The March 2012 VA examiner noted that the Veteran's low back disability impacts his ability to perform physical labor, especially with frequent bending or lifting greater than 50 pounds, but did not impact his ability to perform sedentary work. The Board finds that these findings are adequately contemplated by the schedular criteria. Therefore, referral for consideration of an extraschedular rating is not warranted. ORDER Entitlement to an increased rating for a back disability rated as 20 percent disabling prior to March 22, 2012 and 60 percent disabling thereafter is denied. ____________________________________________ S. HENEKS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs