Citation Nr: 1605177 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 09-03 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 20 percent for a low back disability. 2. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1978 to March 1981 and from February 1983 to April 1988. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). This matter has been remanded by the Board in October 2012 and December 2014 for additional development. The issues of entitlement to a rating in excess of 20 percent for intervertebral disc syndrome of the lumbar spine on an extraschedular basis and a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Even in consideration of his complaint of pain, pain on motion, and functional loss, the Veteran's low back disability did not result in forward flexion limited to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes intervertebral disc syndrome. CONCLUSION OF LAW The criteria for a schedular rating in excess of 20 percent for intervertebral disc syndrome of the lumbar spine were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.71a Diagnostic Codes 5243 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified by letter dated in June 2007. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent May 2015 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims on appeal in July 2007, September 2007, January 2013, and December 2014 that are adequate for rating purposes. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating 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 ratings 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 (2015). 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, and the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2015); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the disability more nearly 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 (2015). It is not expected that all cases will show all the findings specified. However, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2015). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting a decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis will focus on the most salient and relevant evidence and on what that evidence shows, or does not show, relevant to the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000) (Board must address reasons for rejecting any evidence favorable to the Veteran). The Veteran asserts that his low back disability warrants higher ratings then the 20 percent assigned under Diagnostic Code 5243. Schedular ratings for disabilities of the spine are provided by application of the General Rating Formula for Diseases or Injuries of the Spine or by application of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a (2015). The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area affected by residuals of injury or disease. 38 C.F.R. § 4.71a (2015). The General Formula provides that a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, a 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine (2015). A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine (2015). A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine (2015). Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (5) (2015). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (1) (2015). 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 extension are 0 to 30 degrees, and left and right lateral rotation are 0 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 for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (2) (2015). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 60 percent rating is assigned where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 20 percent rating is assigned where there are incapacitating episodes having a total duration of at least two week but less than four weeks during the past 12 months. A 10 percent rating is assigned where there are incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2015). An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1) (2015). In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. 38 C.F.R. § 4.40 (2015). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on 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 (2015). Factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. 38 C.F.R. § 4.45 (2015). Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2015). Where functional loss is alleged due to pain upon motion, the function of the musculoskeletal system and movements of joints must still be analyzed. DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80 (1997). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Therefore, painful motion should be considered to determine whether a higher rating is warranted on that basis, whether or not arthritis is present. Burton v. Shinseki, 25 Vet. App. 1 (2011). Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The RO has rated the Veteran's low back disability under Diagnostic Code 5243 for intervertebral disc syndrome. Other disabilities of the lumbosacral spine are also rated using the General Formula or Intervertebral Disc Formula, so the rating criteria are the same. Diagnostic Code 5003 also provides ratings for arthritis. A rating under Diagnostic Code 5003 cannot be combined with a rating based on limitation of motion and Diagnostic Code 5003 only provides for 10 percent and 20 percent ratings. Therefore, no higher or separate rating is warranted pursuant to Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2015). A July 2007 VA examination report shows that the Veteran reported increased back pain with additional pain radiating down both legs. The examiner noted that the Veteran had an L5 discectomy in the 1990s. The Veteran reported that his pain limited his ability to go up and down stairs, and to lift 50 to 70 pound plates that was a requirement of his employment. He also reported that he was unable to cut his grass or even wash his car. He reported that had not missed work and had not been placed on physician prescribed bed rest. The Veteran described flare-ups of a 9 to 10 pain level, which he treated with Flexeril and anti-inflammatory medications. He also reported that he wore a back brace at work and used a cane. Range of motion testing showed forward flexion of the thoracolumbar spine to 45 degrees, extension to 10 degrees, left and right lateral flexion to 20 degrees, and left and right lateral rotation to 70 degrees. The examiner noted that the range of motion results did not change with repetitive use testing. Radiographic imaging showed diffused spondylosis with facit joint degenerative changes with loss of disks heights at the L5 level consistent with degenerative disk disease and previous discectomy. The examiner reported that the Veteran's pain could further limit function as described particularly with flare-ups. However, the examiner noted that it was not feasible to express this loss in terms of additional limitation of motion as these matters could not be determined with any degree of medical certainty. A September 2007 VA examination report shows that the Veteran reported lower back pain that caused him difficulty with standing more than 30 minutes. The Veteran reported that he could only walk about a fourth of a mile which would be painful. The Veteran reported that he had never been prescribed bed rest in the past twelve months though he stated that many times he would have stayed in bed but he had to go to work. The Veteran also described pain in his legs with lower extremity numbness. Physical examination of the thoracolumbar spine showed tenderness to palpation over the lumbar spine and the right paraspinal muscles. Range of motion was noted as forward flexion to 45 degrees, extension to 10 degrees, right and left flexion to 15 degrees, right and left rotation to 30 degrees. The examiner reported no additional loss of motion with repetitive use but did note pain throughout all ranges of motion. No spams were noted. After a neurological examination, the examiner reported that the Veteran symptoms were not true radicular symptoms. A January 2011 Social Security Administration (SSA) disability determination noted that the Veteran had been disability since November 2009 due to disorders of the back (discogenic and degenerative). Additionally, a case analysis report noted that the Veteran used a cane but was able to ambulate without a cane without a limp. The medical examiner noted that the Veteran was reluctant to perform range of motion examination of the spine but was able to forward flex his spine to 30 degrees. A January 2013 VA examination report shows that the Veteran reported lower back pain with additional pain radiating down into this right foot with numbness and tingling. The Veteran reported flare-ups that caused increased pain and back spasms. Range of motion testing showed forward flexion to 60 degrees with pain noted at 60 degrees, extension to 30 degrees with no pain noted, left and right lateral flexion to 30 degrees with no pain noted, and left and right lateral rotation to 30 degrees with no pain noted. Repetitive use testing was performed that showed no additional loss of range of motion. The examiner reported that the Veteran's functional loss consisted of less movement than normal and pain on movement. Localized tenderness or pain to palpation for joint of the soft tissue of the thoracolumbar spine was noted. No guarding or muscle spasms of the thoracolumbar spine was noted. Straight leg raise testing showed a positive indication for the right leg. The examiner diagnosed the Veteran with radiculopathy of the right lower extremity noted as mild. No other neurological abnormalities were diagnosed or noted such as bowel or bladder problems. The examiner also diagnosed the Veteran with IVDS of the thoracolumbar spine but no incapacitating episodes in the previous 12 months due to IVDS were noted. The examiner noted that the Veteran used a back brace and cane to assist with normal modes of locomotion. A December 2014 VA examination report shows that the Veteran was diagnosed with IVDS. The examiner noted the Veteran's lower back treatment history consisted of recurrent back strains that required a discectomy at the L5/S1 in 1991. The Veteran reported a progressive increase in back pain. The Veteran also reported the was unable to bend over, stand or walk for prolonged periods of the time. The Veteran did not report the occurrences of flare ups. Functional loss was reported as increased pain with heavy activity or bending forward to pick something off the ground. Range of motion testing showed forward flexion to the 60 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. The examiner noted that pain was present on forward flexion and extension. Pain with weight bearing was noted. Repetitive use testing shown showed no additional loss of functional ability. The Veteran did not report flare ups. Guarding or muscle spasms of the thoracolumbar spine were noted that did not result in an abnormal gait or abnormal spinal curvature. The examiner diagnosed the Veteran with radiculopathy of the right lower extremity. No other neurological abnormalities or findings were diagnosed. X-rays showed that the Veteran did not have a thoracic vertebral fracture. The examiner reported that the Veteran's low back disability impacted his ability to work as it would cause difficulty with bending over, prolonged standing or walking. The examiner did report that the Veteran would be OK for sedentary work if he received breaks every hour or so for stretching. Based on the evidence of record the Board finds that the Veteran's low back disability did not more nearly approximate a rating in excess of 20 percent during the course of the appeal. Specifically, range of motion testing performed did not show that the Veteran's lumbar spine was limited to 30 degrees or less, even when considering the impact of pain and other factors limiting the range of motion. The Board notes that an January 2011 SSA medical examination report showed that the Veteran was able to achieve forward flexion of the thoracolumbar spine to 30 degrees. However, this measurement is inconsistent with other range of motion testing conducted throughout the appeal period which consistently showed that the Veteran was able to achieve forward flexion of 45 to 60 degrees. Additionally, the Veteran was noted to be reluctant to perform range of motion testing and did not complete repetitive use testing which calls into question the validity of this one range of motion test result. Therefore, the Board finds that the Veteran's thoracolumbar spine has not been shown to be limited to forward flexion of 30 degrees or less. Consideration has been given to the Veteran's complaints of limited motion and functional loss due to pain. Pain throughout his range of motion has been documented. However, while the medical evidence shows pain and limited range of motion due to pain, the pain and other limiting factors are not show to limit the Veteran's thoracolumbar forward flexion to 30 degrees or less as required for a higher rating. Joint pain alone, including pain throughout the entire range of motion, but without evidence of decreased functioning ability, does not warrant a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board also notes that in order for the Veteran's symptomatology to warrant a higher rating of 40 percent, ankylosis would have to be shown affecting the entire thoracolumbar spine. Here, objective medical examination by the VA examination reports of record shows no ankylosis of the entire lumbosacral spine. The Veteran is also not shown to have had incapacitating episodes of at least four weeks but less than six weeks during a 12 month period which is required for a rating in excess of 20 percent. Instead, he was found to have no incapacitating episodes at any period during the course of his appeal. Therefore, the Board finds that the Veteran's claim for a rating in excess of 20 percent for a low back disability must be denied. VA regulations provide that any objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, that are associated with a service connected back disability are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (1) (2015). The Veteran is already being compensated for right leg radiculopathy associated with his low back disability. With regards to left leg radiculopathy, the Board notes that the Veteran has not been diagnosed with left leg radiculopathy during VA examinations conducted in September 2007, January 2013, or December 2014. Additionally, the examination reports do not shown any diagnosis for any other neurological conditions such as bowel or bladder problems. Therefore, separate ratings for additionally neurological conditions are not warranted denied. The Board has also considered the statements submitted by the Veteran in support of his claim. The Board finds that the Veteran is a lay person and is competent to report observable symptoms he experiences through his senses such pain and stiffness. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. The identification of a spinal disability and the determination of the range of motion of the spine and the prescription for bed rest requires medical expertise that the Veteran has not shown he possesses. Determining whether the Veteran meets some of the criteria for a higher rating requires medical diagnostic testing. Competent evidence concerning the nature and extent of the Veteran's low back disability has been provided by the medical personnel who have examined him during the current appeal and who have made pertinent clinical findings in conjunction with the examination. The medical findings, as provided in the examination reports, directly address the criteria under which his disability is rated. The Board finds that evidence is the most persuasive and outweighs the Veteran's statements in support of his claim. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2014). Accordingly, the Board finds that the preponderance of the evidence is against the claim for increased rating for a low back disability on a schedular basis, and that claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a schedular rating in excess of 20 percent for a low back disability is denied. REMAND In the December 2014 Remand, the Board specifically directed that a medical opinion be provided to that addressed whether it was at least as likely as not that the Veteran's low back disability was so severe by itself to preclude the Veteran from obtaining or maintaining any form of substantially gainful employment consistent with his eduction and occupational background. Such raises a claim for TDIU as well as an extraschedular rating for his back disability. On December 2014 the Veteran was afforded a VA examination concerning his low back. The examiner opined that the Veteran's low back disability would impact his ability to work in that he had difficulty with bending over, prolonged standing or walking. The examiner reported that the Veteran would be capable of sedentary work if he were to receive breaks ever hour or so for stretching. Here, the Board finds that the December 2014 VA examiner's opinion is incomplete and did not comport with the December 2014 remand directives. Specifically, the examiner did not consider the Veteran's educational and occupational background in providing the opinion that he could work in a sedentary job. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a Social Industrial Survey to ascertain the impact of the service-connected disabilities on employability. The claims folder contents must be made available for review and the surveyor must note that review in the report. The VA Social Industrial surveyor is requested to describe the Veteran's employment and educational history. The surveyor should provide a full description of the effects, to include all associated limitations, of the Veteran's service connected disabilities on ordinary activities, to include employability, taking into consideration his level of education, special training, and previous work experience, but not age or any impairment caused by nonservice-connected disabilities. The examiner is asked whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service connected disabilities preclude him from gaining and maintaining substantially gainful employment. All opinions expressed should be accompanied by supporting rationales. 2. After the above development has been completed, refer the case to the Director of Compensation and Pension Service for consideration of entitlement to an extraschedular rating and a TDIU pursuant to 38 C.F.R. § 4.16(b) (2015). 3. Then, readjudicate the claim. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs