Citation Nr: 1602287	
Decision Date: 01/20/16    Archive Date: 01/27/16

DOCKET NO.  10-17 784	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to an initial disability rating in excess of 10 percent for degenerative changes of the lumbar spine.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Matthew Schlickenmaier, Associate Counsel



INTRODUCTION

The Veteran served on active duty from June 1980 to June 1984 and from February 1985 to November 2002.

This matter initially came before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

In April 2014, the Board remanded the appeal for further development.

In an October 2014 rating decision, the issues of entitlement to service connection for recurrent frontal sinusitis, a cervical spine disorder, migraines, and plantar fasciitis/pes planus were granted in the field.  Only the lumbar spine issue remains on appeal.

The Board observes that in November 2014, the Veteran submitted a Fully Developed Claim for entitlement to service connection for headaches.  While this communication was received within one year of the October 2014 rating decision granting entitlement to service connection for migraine headaches, there is no indication that the Veteran disagrees with the initially assigned rating or that he desires appellate review as required by the applicable regulation in effect at that time.  38 C.F.R. § 20.201 (2014).  As such, the Board will not construe this as a notice of disagreement.  To the extent the Veteran intends to file a claim of entitlement to service connection for a headache disability other than migraines, he should clarify that matter for the Agency of Original Jurisdiction (AOJ) in order for further action to be taken.

In an October 2015 correspondence, the Veteran requested to withdraw a prior request for a Central Office hearing before the Board.  It is therefore considered withdrawn.  38 C.F.R. § 20.704(e) (2015).

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems.  Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records.


FINDINGS OF FACT

1. From July 7, 2008 to January 5, 2010, degenerative changes of the lumbar spine more nearly approximated forward flexion greater than 30 degrees but not greater than 60 degrees but did not more nearly approximate flexion of the thoracolumbar spine of 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or Intervertebral Disc Syndrome with incapacitating episodes having a total duration of at least 4 weeks during the past 12 months.

2. From January 6, 2010, the Veteran's degenerative changes of the lumbar spine have not more nearly approximated flexion of the thoracolumbar spine between 30 and 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or Intervertebral Disc Syndrome with incapacitating episodes having a total duration of at least 2 weeks during the past 12 months.


CONCLUSIONS OF LAW

1.  With resolution of reasonable doubt in the appellant's favor, the criteria for an initial rating of 20 percent, but no higher, for degenerative changes of the lumbar spine from July 7, 2008 to January 5, 2010 have 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, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2015).

2. The criteria for a rating in excess of 10 percent from January 6, 2010 have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  As the current claim arises from the Veteran's disagreement with the initial rating assigned in connection with the grant of service connection, there is disagreement only as to "downstream" questions.  The claim has therefore been substantiated and there is no need to provide additional notice or address prejudice from absent notice.  Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007).

VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  There is no evidence that additional records have yet to be requested, or that additional examinations are in order.

Pursuant to the Board's April 2014 remand, the AOJ obtained an adequate VA contract examination that evaluated the current severity of the appellant's lumbar spine disability.  Hence, the Board finds that there has been substantial compliance with the prior remand.  Stegall v. West, 11 Vet. App. 268 (1998).

Legal Principles and Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4.  The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  All reasonable doubt as to the rating will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

Where service connection has been granted and the assignment of an initial evaluation for that disability is disputed, separate ratings may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be staged.  Fenderson v. West, 12 Vet. App. 119 (1999).

In this case, during the period on appeal, the Veteran's lumbar spine disability has been rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5242, applicable to degenerative arthritis of the spine.  All disabilities of the spine are rated under the general rating formula for diseases and injuries of the spine.  Under this general rating formula, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent rating is warranted for flexion of the thoracolumbar spine between 30 and 60 degrees, or 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.  A 40 percent rating is warranted for flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.  Higher ratings of 50 and 100 percent require unfavorable ankylosis.  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.  38 C.F.R. § 4.71a, Plate V.

Disabilities of the spine may also be rated under the formula for rating Intervertebral Disc Syndrome based on incapacitating episodes.  Note 1 to the formula for rating Intervertebral Disc Syndrome defines incapacitating episodes as a period of acute signs and symptoms due to Intervertebral Disc Syndrome that require bed rest prescribed by a physician and treatment by a physician.

The Intervertebral Disc Syndrome Formula provides a 10 percent disability rating for Intervertebral Disc Syndrome with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating for Intervertebral Disc Syndrome 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 Intervertebral Disc Syndrome  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 Intervertebral Disc Syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a.

In addition, 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 to which 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 symptoms such as pain.  DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45.

In this case, at a June 2009 VA contract examination, the Veteran reported stiffness in his spine but denied numbness, loss of bladder control, and loss of bowel control.  He reported localized, aching pain of 4/10 in the lumbar spine which occurred about three times per week.  The pain was elicited spontaneously by physical activity but was also relieved spontaneously.  The Veteran denied receiving any treatment for his condition but claimed that over the previous 12 months, he had experienced incapacitating episodes for 28 days from 2008 to 2009 while in Iraq.  Range of motion testing of the thoracolumbar spine revealed 90 degrees of flexion, with pain at 65 degrees; 30 degrees of extension with pain at 15 degrees; 30 degrees of right and left lateral flexion with pain at 10 degrees; and 30 degrees of right and left lateral rotation with pain at 20 degrees.  The examiner observed that after repetitions, joint function of the spine was limited by pain but not fatigue, weakness, lack of endurance or incoordination, and estimated that such pain additionally limited joint function by 10 degrees, presumably in each plane of motion.  Physical examination revealed a normal posture and gait and there was normal head position, symmetry of spinal motion, and curves of the spine.  There was no sign of lumbar Intervertebral Disc Syndrome or permanent nerve root involvement.  Neurological testing of the extremities was normal and he did not use assistive devices for ambulation.

A July 2009 private treatment record indicates that the appellant continued to complain of low back pain and physical examination revealed pain on palpation of the low back.  X-rays indicated dextro scoliosis with an apex at T11, loss of disc heights at L5/S1, lumbar lordosis of 50 degrees and mild spondylosis of the lumbar spine.

An August 2009 private treatment record reveals range of motion testing indicating 26 degrees of flexion, 19 degrees of extension, 21 degrees of right lateral flexion and 31 degrees of left lateral flexion.  Notably, the test considered normal forward flexion to be 60 degrees, extension to be 25 degrees, and lateral flexion to be 25 degrees and, accordingly, concluded that the Veteran was 57 percent limited in forward flexion, 24 percent in extension, 16 percent in right lateral flexion, and zero percent in left lateral flexion.

A January 2010 treatment record from National Naval Medical Center in Bethesda, Maryland shows left-sided scoliosis in the lumbar spine but no limitation of motion, and no spinous process tenderness.

At a May 2014 VA contract examination, range of motion testing revealed forward flexion of 90 degrees with pain at 90 degrees; extension of 30 degrees with pain at 30 degrees; right and left lateral flexion of 30 degrees with pain at 30 degrees; right and left lateral rotation of 30 degrees with pain at 30 degrees.  While there was pain on movement after repetitions, it did not additionally limit range of motion.  There was no localized tenderness, pain to palpation, muscle spasm, or muscle atrophy.  Deep tendon reflexes and sensation to light touch testing was normal.  Straight leg raise testing was negative bilaterally and there was no radiculopathy or other neurologic abnormalities.  There was no evidence of Intervertebral Disc Syndrome and the Veteran did not use assistive devices.  The examiner noted that x-rays did not reveal arthritis or vertebral fracture.  The appellant reported experiencing flare-ups involving degenerative back pain and arthritis and the examiner described the functional impact of the lumbar spine disability as involving pain with walking and bending.  The examiner further remarked that there was a limp with the Veteran's posture and gait due to back pain but that there were no contributing factors of weakness, fatigability, incoordination or pain during flare-ups or repeated use over time that could additionally limit the functional ability of the thoracolumbar spine.

Initially, the Board observes that prior to January 2010, range of motion in the thoracolumbar spine appears to have varied significantly.  While the June 2009 VA contract examination found essentially normal range of motion before considering the effect of pain, the August 2009 private treatment record noted very limited forward flexion of only 26 degrees.  Given that VA regulations consider normal forward flexion to be 90 degrees but the August 2009 test considered normal forward flexion to be only 60 degrees, application of the August 2009 findings to the general rating formula of the spine would be inappropriate without considering the surrounding context.  The August 2009 notation that forward flexion was 57 percent limited, as applied to VA regulations contemplating 90 degrees of normal forward flexion, suggests that the Veteran had about 39 degrees of forward flexion (in other words, about 43 percent of the 90 degrees of normal forward flexion).  Such a finding is more or less consistent with the June 2009 examination showing that pain limited forward flexion to 65 degrees before repetitions and to 55 degrees after repetitions.  Although pain itself does not constitute functional loss, it may cause functional loss, Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011), and the above indicates that the Veteran's pain resulted in objective limitation of motion.  Considering the appellant's competent and credible reports of frequent lumbar pain, the Board finds that the evidence is at least evenly balanced as to whether flexion was between 30 and 60 degrees from July 7, 2008 to January 6, 2010.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, an initial rating of 20 percent prior to January 6, 2010 is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

As to whether a higher initial rating is warranted, a 40 percent rating would require flexion limited to 30 degrees or less or ankylosis.  There is no evidence of ankylosis and, except for the August 2009 forward flexion finding discussed above, there is no evidence of flexion limited to 30 degrees or less.  Further, even taking as true the Veteran's July 2009 statement that he experienced 28 days of incapacitating episodes - and ignoring the examiner's notation that there was no sign of Intervertebral Disc Syndrome - 28 days is not greater than four weeks and therefore cannot support a rating in excess of 20 percent.  Moreover, it is not shown that this period of "incapacitation" was prescribed or required by a physician as required for the higher rating.

From January 6, 2010, a rating in excess of 10 percent is not warranted.  While the January 2010 treatment record noted a left sided scoliosis, it was not attributed to muscle spasm or guarding and range of motion was otherwise noted to be normal.  Similarly, at the May 2014 VA contract examination, range of motion was essentially normal and while pain was observed, it did not result in additional limitation of motion.  Although the examiner noted that the Veteran walked with a limp, again, there is no indication that it was the result of guarding and the examiner noted that physical examination was negative for muscle spasm.  Finally, the examiner noted that there was no evidence of Intervertebral Disc Syndrome.

The discussion above reflects that the symptoms of the Veteran's lumbar spine disability are contemplated by the applicable rating criteria.  The effects of his disability have been fully considered and are contemplated in the rating schedule. Thus, consideration of whether his disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extra-schedular rating is unnecessary.  Thun v. Peake, 22 Vet. App. 111 (2008).  Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  In this case, however, even after applying the doctrine of reasonable doubt, there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition.  Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.

As the Veteran has not indicated that his lumbar spine disability has caused unemployability, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the evidence of record.  Cf. Rice v. Shinseki, 22 Vet. App. 447 (2009) (the issue of entitlement to a total disability rating based on individual unemployability is raised when evidence of unemployability is submitted at the same time as a claim for a higher rating and the Veteran seeks the highest rating possible).

For the foregoing reasons, reasonable doubt has been resolved in favor of the Veteran in granting an initial rating of 20 percent for degenerative changes of the lumbar spine from July 7, 2008 to January 5, 2010.  The preponderance of the evidence is otherwise against the claim and the benefit of the doubt doctrine is not for application.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to an initial rating of 20 percent, but no higher, is granted from July 7, 2008 to January 5, 2010, subject to controlling regulations governing the payment of monetary awards.

Entitlement to a rating in excess of 10 percent from January 6, 2010 is denied.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs