Citation Nr: 1603237 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 12-11 411A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased initial rating for service-connected lumbar spine degenerative joint disease (DJD), rated as 10 percent disabling prior to September 29, 2014, and as 40 percent disabling from that date. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Spitzer, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1980 to May 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that in relevant part granted service connection for lumbar spine DJD and assigned an initial rating of 10 percent effective from January 5, 2010; the Veteran appealed the disability rating assigned. During the course of the appeal, the Veteran received 100 percent compensation for his lumbar spine disability while convalescing from surgery from August 3, 2010, to October 1, 2010. As a 100 percent rating is the maximum payable, the period from August 3, 2010 to October 1, 2010 is not for consideration in this appeal. A November 2014 rating decision granted a 40 percent rating for the lumbar spine disability effective from September 29, 2014. The Veteran testified before the undersigned Veterans Law Judge in a Board videoconference hearing in March 2015. A transcript of his testimony is of record. In June 2015 the Board remanded the current issue for further development. The case is once again before the Board. As noted in the prior remand, the file shows that in May 2012 the Veteran submitted a claim seeking service connection for erectile dysfunction and for urinary problems as secondary to the service-connected lumbar spine disability. These issues have not yet been adjudicated and are REFERRED to the Agency of Original Jurisdiction (AOJ) for appropriate action. Additionally, the Veteran has indicated that he does not believe he was paid the proper amount for the full period that the temporary total rating was assigned from August 2010 to October 2010. Such matter is also REFERRED to the AOJ for appropriate action. FINDINGS OF FACT 1. Prior to September 29, 2014, the Veteran's DJD of the lumbar spine was manifested by forward flexion greater than 60 degrees and a combined range of motion greater than 120 degrees, without muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour. 2. From September 29, 2014, the Veteran's DJD of the lumbar spine was manifested by forward flexion less than 30 degrees, but without ankylosis or incapacitating episodes due to invertebral disc syndrome (IVDS). CONCLUSIONS OF LAW 1. Prior to September 29, 2014, the criteria for an evaluation in excess of 10 percent for DJD of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2015). 2. From September 29, 2014, the criteria for an evaluation in excess of 40 percent for DJD of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). This appeal arises from the Veteran's disagreement with the initial evaluation assigned following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records are on file, as are private treatment records, and VA examination reports. The Veteran was also afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who chairs a hearing explain the issue and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issue to the Veteran, who testified as to the symptomatology of his claimed condition, functional impairment and treatment history. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. The Board also notes that the actions requested in the June 2015 remand have been undertaken. An addendum VA opinion was obtained in July 2015 and additional private treatment records were obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and that no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Analysis 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; 38 C.F.R. § 4.1. 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; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; 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; 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. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an award of service connection for that disability, separate, or "staged," ratings can be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 (2015); see also 38 C.F.R. §§ 4.45, 4.59 (2015). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The August 2010 rating decision on appeal granted service connection for the Veteran's DJD of the lumbar spine and assigned a 10 percent rating effective January 5, 2010. In a November 2014 rating decision, the RO increased the rating to 40 percent disabling, effective September 29, 2014. The Veteran seeks a rating in excess of 10 percent prior to September 29, 2014, and in excess of 40 percent thereafter. Additionally, the Board notes that an October 2015 rating decision granted separate 10 percent ratings for bilateral radiculopathy of the lower extremities. The Veteran has not appealed the evaluation or effective date of that determination. Thus, such matter is not before the Board, and symptomatology attributed thereto cannot be considered in evaluation of the lumbar spine disability. 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). The Veteran's lumbar spine disability is rated under Diagnostic Code 5242, which utilizes the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Ratings under the General Rating Formula are made 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. 38 C.F.R. § 4.71a. The General Rating Formula provides a 10 percent disability rating 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 disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. The General Rating Formula provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Alternatively, intervertebral disc syndrome (IVDS) can be rated under Diagnostic Code 5243 and the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). Under this Formula, IVDS with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months warrants a 10 percent rating. A 20 percent disability rating is warranted 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 is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating is warranted 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. Id. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran was afforded a VA examination in July 2010, at which time he reported moderate low back pain with flare-ups occurring every one to two months and lasting three to seven days. He reported that the flare-ups were precipitated by repeated bending, yard work, and prolonged sitting and alleviated by rest and heat. The Veteran stated that his normal activities are limited by 30 percent during flare-ups, and endorsed a history of fatigue, stiffness, and spasms. He reported that he did not have a history of incapacitating episodes of spine disease. Upon physical examination, the Veteran was found to have a normal gait with no ankylosis, spasm, atrophy, guarding, or pain with motion, tenderness, or weakness. Range of motion of the thoracolumbar spine revealed flexion to 70 degrees; extension to 20 degrees; bilateral side-bend to 30 degrees; and bilateral rotation to 20 degrees. Following repetitive motion there was no additional loss of joint function. Motor strength was normal and no diminished sensory pattern was noted. The examiner diagnosed DJD of the thoracolumbar spine. Subsequently in July 2010, the Veteran presented to a private orthopedic provider reporting four episodes of low back pain in the past five months. He reported that the pain causes difficulty with walking and is aggravated by general activity. Physical examination revealed normal gait and motor strength. A Magnetic Resonance Imaging (MRI) scan showed disc bulges at L3-L4 and L4-L5 and bilateral foraminal stenosis at L4-L5. Following his August 3, 2010 laminectomy, the Veteran was seen in September 2010 by his private provider. The Veteran reported that his condition had improved and that he was not taking pain medication. Physical examination noted a normal gait, and that pain was not worsened with forward flexion, extension, side bending or rotation. Femoral stretch and seated leg tests were negative bilaterally. In November 2010, the Veteran presented for another follow-up appointment. The Veteran again reported that his condition had improved and that he was happy with his results. Physical examination showed full range of motion in the bilateral hips with pain worsening from forward flexion at times. The examiner noted that internal rotation of the bilateral hips did not produce pain, and that the Veteran had a normal gait and negative bilateral femoral stretch and seated leg tests. Similar findings were noted during private treatment sessions in February 2011 and August 2011. The Veteran was afforded another VA examination in September 2014. The Veteran reported experiencing low back pain six to eight times a year lasting two to four days causing limitations in bending, lifting, walking and climbing stairs. He stated that when he has an exacerbation of pain he experiences a 50 percent reduction in range of motion across all planes. Range of motion testing revealed flexion to 25 degrees with painful motion shown at 10 degrees; extension to 15 degrees; bilateral side-bend to 15 degrees with painful motion at 10 degrees; and bilateral rotation to 20 degrees with painful motion at 10 degrees. The examiner reported that the Veteran could not perform repetitive use testing due to pain. The examiner noted that the Veteran had functional loss in the form of less movement than normal, weakened movement, excess fatigability, incoordination, disturbance of locomotion and interference with sitting, standing and/or weight bearing. The Veteran was found to have palpable pain and tenderness and guarding or muscle spasm resulting in an abnormal gait. The Veteran's motor strength was 4/5 with positive straight leg raising test results. Reflex and sensory examinations were normal. The examiner noted that the Veteran does not have IVDS and uses a back brace for additional support and to control pain. The examiner did not note ankylosis of the thoracolumbar spine. After review of the evidence of record, the Board finds that, resolving all doubt in the Veteran's favor, a higher rating for the Veteran's lumbar spine disability is not warranted for either period on appeal. Addressing the period prior to September 29, 2014, the medical evidence shows that the Veteran's lumbar spine disability was manifested by forward flexion greater than 60 degrees and a combined range of motion greater than 120 degrees, with no additional limitation of motion due to pain and without muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour. In this regard, the July 2010 VA examination revealed forward flexion to 70 degrees with a combined range of motion of 190 degrees with no additional loss following repetitive motion. Private treatment records from this period do not note reduced range of motion or other symptoms or functional impairment warranting a higher rating. Therefore, a rating in excess of 10 percent is not warranted prior to September 29, 2014. Turning to the period from September 29, 2014, the evidence reflects that the Veteran's lumbar spine disability was manifested by forward flexion to 25 degrees; however, ankylosis was not shown, nor were there incapacitating episodes due to IVDS. The September 2014 VA examination revealed forward flexion to 25 degrees, but not ankylosis. Accordingly, a rating in excess of 40 percent is not warranted. The Board has considered the Veteran's statements regarding the difficulty he experiences walking, standing, sitting, sleeping, bending, and ascending and descending stairs, as well as his subjective symptoms, including pain and instability. However, the Board concludes that the medical findings on objective examinations are of greater probative value than the lay allegations regarding the severity of his lumbar spine disability. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an initial evaluation in excess of 10 percent prior to September 29, 2014, and in excess of 40 percent from September 29, 2014 for the Veteran's lumbar spine disability. Moreover, the 2010 VA examiner found no separate neurological diagnosis attributed to his low back disability, and the 2014 examiner indicated that the Veteran did not have neurological impairment related to his low back disability other than radiculopathy to the legs, which, as noted above, has been separately compensated. Accordingly, a separate rating for neurological disability is not warranted. 38 C.F.R. § 4.124a. Likewise, although a surgical scar was noted on the 2014 VA examination, the examiner noted the scar was not painful, unstable, or greater than 39 square centimeters. Accordingly, a separate rating for the surgical scar is not warranted. 38 C.F.R. § 4.118. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2015); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the established schedular criteria are inadequate to describe the severity and symptoms of the claimant's disability. See Thun v. Peake, 22 Vet. App. 111, 118 (2008). Here, the rating criteria and the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 reasonably describe the Veteran's disability level and symptomatology, and the rating criteria provide for additional or more severe symptoms than currently shown by the evidence based on more severe limitation of motion, ankylosis, and incapacitating episodes. Thus, the Board finds his low back disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. Finally, the Veteran has not asserted that his lumbar spine disability has rendered him unemployable, nor does the evidence suggest such. On the contrary, the Veteran is currently employed. Thus, the Board finds that a claim for a total disability rating based on individual unemployability has not been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER For the period prior to September 29, 2014, an evaluation in excess of 10 percent for dejenerative joint disease of the lumbar spine is denied. For the period from September 29, 2014, an evaluation in excess of 40 percent for dejenerative joint disease of the lumbar spine is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs