Citation Nr: 1603451 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 08-29 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a rating higher than 20 percent for disc degeneration of the lumbar spine. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Connally, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had service from June 1972 to June 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 decision of the Regional Office (RO) in Columbia, South Carolina. Since that time, the Veteran's claims file has been transferred to the RO in Columbus, Ohio. The Board previously considered this appeal in September 2014, and remanded this issue for further development in order to request updated treatment records and also conduct a VA examination to determine the current nature and severity of the Veteran's disability. That development was completed, and the case returned to the Board for further appellate review. FINDINGS OF FACT The Veteran's disc degeneration of the lumbar spine is manifested by forward flexion of the thoracolumbar spine to 45 degrees, and was not manifested by forward flexion to 30 degrees or less, ankylosis, or incapacitating episodes of more than one week in the past 12 months. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a low back disability have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION As an initial matter, the Board acknowledges the Veteran's service to his country and is sympathetic to his medical condition; however, the Board must apply the law as it exists. See Owings v. Brown, 8 Vet. App. 17, 23 (1995) (providing that the Board must apply the law as it exists and is not permitted to award benefits based on sympathy for a particular appellant). The Board has reviewed all the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the current appeal. Rating for Low Back Disability The Veteran contends that his service-connected disc degeneration of the lumbar spine (hereinafter "low back disability") is more severe than the current 20 percent rating reflects. This disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine and Diagnostic Code (DC) 5242 regarding degenerative arthritis of the spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2015). Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where, as here, an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The General Rating Formula for Diseases and Injuries of the Spine 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. Id. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate DC. 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. See also Plate V, 38 C.F.R. § 4.71a. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or, neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a. Furthermore, the provisions of 38 C.F.R. § 4.40 state that a disability affecting 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. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that 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, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, in Mitchell, the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Board further notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). After a full review of the record, and as discussed below, the Board concludes that a rating greater than 20 percent for a low back disability is not warranted. Private treatment records from June 2007 indicate that the Veteran has moderate degenerative disc changes. A September 2007 private chiropractic treatment record shows that the Veteran received medical attention from late July 2007 until late August 2007, and that he had "near full [range of motion] with some complaints of stiffness" by the time he was finished with his chiropractic care. This private chiropractor opined that the Veteran's service-connected low back disability had also caused "limited [range of motion] of the cervical spine with increased pain in all attempted ranges of motion. Fixations of the cervical and thoracic spine with muscle spasm were also present." The private physician further stated, "It was determined that this was due to a segmental dysfunction of the cervical and thoracic regions resulting in a sprain/strain complex of the cervical region. This was felt to be secondary to his original injury." VA treatment records from June 2007 show that the Veteran experienced palpable muscle spasms in his low back with increased pain into his legs. The physician noted that the Veteran needed "to be off work for a few days to let the inflammation subside." In July 2007, radiographic imaging tests revealed an acute lumbar sprain with degenerative disc disease. On VA examination in October 2007, the Veteran explained that his service-connected low back disability was the result of a motor vehicle accident he incurred during service. He endorsed current, severe back pain that radiated down to his left buttocks. He described the pain "as if somebody is sticking a knife in his back." He explained that the pain is aggravated by prolonged sitting, standing, and walking. The pain was said to be alleviated by use of a brace or heating, and also by chiropractic treatment. He denied any numbness or tingling of his extremities. Range of motion testing showed flexion to 80 degrees, extension to 15 degrees, right lateral flexion to 15 degrees with severe pain, left lateral flexion to 15 degrees, bilateral lateral rotations to 15 degrees, limited with pain. Straight leg raising test was negative in both legs. Motor strength was normal. There was no sensory deficit in the extremities. Magnetic resonance imaging (MRI) studies showed right foraminal disc protrusion involving the right lateral recess and right neural foramina that resulted in encroachment. The Veteran received another VA examination in August 2012. He endorsed occasional low back spasms, regular use of a heating pad, morning stiffness of the low back, pain after prolonged sitting (more than 10 minutes). He stated that flare-ups impact the function of his low back. Range of motion testing showed flexion to 90 degrees, extension to 30 degrees, bilateral lateral flexion to 30 degrees, bilateral lateral rotation to 30 degrees, all with no objective evidence of pain. There was no additional limitation or functional loss in range of motion found by the examiner. There was no pain to palpation or localized tenderness. Muscle strength, reflex, and sensory tests were all normal. Straight leg raising test was negative. There were no signs or symptoms of radiculopathy or any other neurologic abnormalities. The Veteran did not have Intervertebral Disc Syndrome (IVDS). He occasionally used a brace or heating pad as an assistive device. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms noted by the examiner. Imaging studies revealed degenerative joint disease of the lumbar spine. The examiner reported that the Veteran's low back disability did not impact his ability to work. On VA examination in November 2015, the Veteran reported "ongoing issues with back pain." He endorsed "chronic lower back pain and left hip/groin area pain" with use of a heating pad and/or back brace during flare-ups. He also reported increased back pain with exertion or activities. He described limitations with standing more than five minutes, walking more than fifteen minutes, sitting more than fifteen minutes, and riding in a car more than forty-five minutes before requiring a position change. The Veteran also stated that his daily physical activities are limited and that he cannot lie on his stomach or back and must sleep on his side. Range of motion testing revealed limited motion, due to pain, at the following endpoints: forward flexion to 45 degrees, extension to 5 degrees, bilateral lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 15 degrees. Repetitive range of motion testing revealed forward flexion to 45 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, and bilateral lateral rotation to 30 degrees. Additional functional loss and/or impairment noted by the VA examiner included less movement than normal, pain on movement, and interference with sitting, standing and/or weight bearing. There was tenderness to palpation of the lumbar paraspinal muscles. There was no guarding or muscle spasm resulting in an abnormal gait or spinal contour. Muscle strength, reflex, and sensory testing results were all normal. Straight leg raising test results were negative. There were no signs or symptoms of radicular pain. There was no IVDS or ankylosis of the spine. The Veteran was noted to regularly use a brace as an assistive device. There were no other pertinent physical findings, complications, conditions, signs or symptoms reported by the examiner. Imaging studies documented arthritis. MRI results showed "Multilevel degenerative disc disease and facet arthrosis of the lumbar spine, most severe at L4/L5 and L5/S1." This MRI study also showed "mild dextroscoliosis of the lumbar spine." There was also mild to severe loss of disc space height at L4/L5 and moderate loss of right L5/S1. There is mild loss of disc space height throughout the rest of the lumbar spine. The examiner noted that the Veteran's low back disability impacts his ability to work because of the limitations he previously described with sitting, standing, walking, riding in a car, and other daily physical abilities as previously described. The Veteran also reported decreased range of motion due to pain, weakness, fatigability, which the examiner opined could significantly limit functional ability during flare-ups or with repetitive use over time. The Board has considered the Veteran's statements of record that a higher disability rating is warranted for his low back disability. In a November 2014 statement, the Veteran claimed that his 2007 MRI from VA treatment records shows that his back condition has worsened. He also stated that his VA physician "put [him] off work for 3-4 days bed rest due to severe flare ups, which happens to this day on occasion." The Veteran is competent to report symptomatology relating to pain in his low back because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, more probative evidence concerning the nature and extent of the Veteran's disability has been provided by the VA examiners during the current appeal and provided relevant medical findings in conjunction with the examinations. In this regard, the medical findings (as provided in the examination reports) directly address the evaluation criteria for this disability, which includes the Board's current 20 percent rating evaluation for functional loss due to pain, weakness, excess fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 202; Mitchell, 25 Vet. App. at 38-43. After consideration of the Mitchell/DeLuca factors, the Board finds that the Veteran has already been compensated for the reported pain on use, and there is no probative evidence of the degree of limitation of motion required for a higher rating. After reviewing the evidence of record, the Board finds that a rating in excess of 20 percent is not warranted at any time during the period of the appeal. The evidence of record indicates that the Veteran's service-connected low back disability is primarily manifested by forward flexion to 45 degrees with pain. To warrant a rating in excess of 20 percent, there must be evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least four weeks during a relevant 12 month period. None of this symptomology is documented or alleged to be present by the Veteran. Even though the disability does cause pain; painful motion does not result in the degree of functional loss required for a 40 percent or greater rating. The Board has also considered whether higher or separate ratings under other Diagnostic Codes associated with the Veteran's low back disability are applicable. With regard to "incapacitating episodes," the Veteran has reported in November 2014 that his VA physician "put [him] off work for 3-4 days bed rest due to severe flare ups, which happens to this day on occasion." This symptomology could warrant, at most, a 10 percent rating, which is unfavorable compared to the Veteran's current rating. He also was unable to provide any further quantification of any significant symptomology which could be characterized as incapacitating episodes. The Board finds this symptomology does not satisfy the definition of incapacitating episodes to warrant an increased rating in excess of 20 percent because he has not been prescribed bed rest by his treating physician due to incapacitating episodes of at least four weeks in a 12 month period during the course of this appeal. Furthermore, the Board has considered whether separate ratings are warranted for any neurological impairment associated with the Veteran's low back disability. With respect to neurological symptoms, the record includes the Veteran's October 2007 report of severe back pain that radiated down to his left buttocks. Subsequent medical examinations did not reveal any symptoms of radiculopathy. Moreover, there is no objective medical evidence to link this previously reported symptomology to a neurological impairment caused by the service-connected low back disability. The Court has indicated that in claims for increased ratings the Board must consider whether the record raises the issue of "unemployability," that is, a contention that the service-connected disability or disabilities prevent him from engaging in or maintaining substantially gainful employment. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, however, the evidence does not indicate that the Veteran's low back disability made him unable to secure or follow any substantially gainful occupation; therefore, the record does not raise the issue of unemployability. The Board has also considered whether referral for an extraschedular rating is warranted for the service-connected low back disability. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Id. at 115. Here, the schedular rating criteria used to rate the Veteran's service-connected low back disability above, reasonably describe and assess the Veteran's disability level and symptomatology. The criteria rate the disability on the basis of ranges of motion and pain; thus, the demonstrated manifestations specifically associated with his service-connected low back disability - namely pain and limited motion - are contemplated by the provisions of the rating schedule. As the Veteran's disability picture for the entire appeal period is contemplated by the rating schedule, the assigned schedular evaluation is adequate. Additionally, he has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). For these reasons, the Board finds that the schedular rating criteria is adequate to rate the Veteran's low back disability, and referral for consideration of an extra-schedular evaluation is not warranted. Based on the foregoing, the Board concludes that the Veteran's low back disability has been no more than 20 percent disabling for the period on appeal. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). For an increased-compensation claim, the US Court of Appeals of Veterans Claims (the Court) has held that § 5103(a) required, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). Such notice was provided in the letter sent to the Veteran in September 2007. Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and no further notice is needed under VCAA. Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). Here, service records have been obtained as have records of VA and private treatment. Based on the foregoing, the Board finds that VA has met its duty to assist with regard to records development. The Veteran was afforded VA examinations with respect to his claim in October 2007, August 2012, and November 2014. During those examinations, the VA examiners conducted physical examinations of the Veteran with diagnostic testing, were provided the claims file for review, took down the Veteran's history, considered the lay evidence presented, laid factual foundations for the conclusions reached, and reached conclusions and offered opinions based on history and examinations that are consistent with the record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met regarding the matter on appeal. 38 C.F.R. § 3.159(c)(4); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). All necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record. The Board has carefully considered such statements, and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of this claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). As noted in the Introduction, the Board previously remanded this claim in September 2014. The Board instructed the AOJ to request updated treatment records and also conduct a VA examination to determine the current nature and severity of the Veteran's disability, and then readjudicate the claim on appeal with consideration of the additional evidence associated with the claims folder. Since that time, VA issued a supplemental statement of the case that considered the additional, new evidence. As a result, the Board finds substantial compliance with its previous remand instructions, and has properly continued with the foregoing decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). ORDER A rating higher than 20 percent for disc degeneration of the lumbar spine is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs