Citation Nr: 1611109 Decision Date: 03/18/16 Archive Date: 03/23/16 DOCKET NO. 09-40 261 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for degenerative joint disease (DJD) and degenerative disc disease (DDD) of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel INTRODUCTION The Veteran had active military service from December 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) following an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which granted service connection for DJD and DDD of the lumbar spine and assigned a 20 percent initial evaluation, effective March 18, 2008. The Board most recently remanded the claim in October 2014 for the issuance of a Statement of the Case (SOC). The RO issued a SOC later that same month, and the Veteran filed a substantive appeal in December 2014. Thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Board notes that in its October 2014 order, the issues of service connection for cervical spine disorder, bilateral shoulders disorder, left hip disorder, bilateral feet disorder, headaches, peripheral neuropathy, skin disorder, and lung/pulmonary disorder were remanded. In June 2015, the RO granted service connection for bilateral peripheral neuropathy of the lower extremities and lung problems. In July 2015, the RO granted service connection for a left hip disability. The issues of service connection for a cervical spine disorder, bilateral shoulders disorder, bilateral feet disorder, headaches, and skin disorder have been readjudicated by the RO, but have not been certified to the Board. As such, the Board will not take jurisdiction of the claims at this time. Once they are recertified, signaling that the AOJ has completed action on the Board's remand instructions, the Board will adjudicate those matters. FINDING OF FACT For the entirety of the appeal period, the Veteran's DJD and DDD of the lumbar spine was manifested by subjective complaints of pain; objective findings reflected pain on motion, tenderness, lessened movement, and range of motion functionally limited to no worse than flexion of 40 degrees, extension of 10 degrees, lateral flexion in each direction of 15 degrees, and lateral rotation in each direction of 15 degrees. CONCLUSION OF LAW The criteria for establishing an initial evaluation in excess of 20 percent for DJD and DDD of the lumbar spine for the entirety of the appeal period have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242-5237 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the present case, the Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as 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). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 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). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatments and examinations. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused 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 claims. Additionally, the Veteran was afforded VA examinations for his claims in April 2012 and April 2015. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examinations are sufficient, as they are predicated on consideration of the medical records in the Veteran's claims file, as well as specific examination findings and the Veteran's own contentions. The examiner considered the Veteran's statements and provided explanations for the findings made, relying on and citing to the records reviewed. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis Disability ratings are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2015). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2015); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In its October 2012 rating decision, the RO evaluated the Veteran's DJD and DDD of the lumbar spine in accordance with the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237, and assigned an initial rating of 20 percent, effective March 18, 2008. Under the General Rating Formula for Diseases and Injuries of the Spine, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted 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. 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. Following the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine, in relevant parts, Note (1) instructs to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (5) provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, 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. Under current provisions for rating intervertebral disc syndrome (IVDS), IVDS (preoperatively or postoperatively) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine as noted above, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2015). For evaluation of IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is assignable. With incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent rating is assignable. Id. For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. The relevant evidence in this case consists of VA examinations conducted in April 2012 and April 2015, VA treatment records, Social Security Administration (SSA) records, as well as the Veteran's statements. SSA records in March 2008 showed that the Veteran had good motion in flexion and extension, but that he had tenderness over the left greater trochanter. Test results reflected absent reflexes at the ankles, and decreased reflexes at the knees and the upper extremities. The Veteran had normal muscle strength but complained of numbness in the left lower extremity, including at the foot. He reported that he could sit for 30 minutes, stand for 15 minutes, and walk around the block. The Veteran stated that he had urgent bowel movements, but he denied bowel or bladder incontinence. X-rays revealed DJD but no DDD, and there were no localizing neurological findings. VA treatment records in August 2009 noted that the Veteran went to a chiropractor approximately once every two weeks for his back pain. Physical examination revealed that the Veteran had tenderness in the lumbar spine but full strength in his bilateral lower extremities. Lumbar spine x-rays showed degenerative changes. Private treatment records in June 2010 from the Veteran's chiropractor reflected that he was treated for radicular pain. At the April 2012 VA examination, the Veteran reported that he could sit for a couple of hours, stand for approximately three hours, and that he could "probably walk a mile" with breaks. The examiner remarked that it was "impossible to clarify how much time he missed in the last year due to any of the [orthopedics] problems," and that there was no physician prescribed bedrest. The Veteran rated his lumbar pain as an eight out of ten and reported that he did not experience flare-ups outside his usual pain pattern. He stated that he was sometimes incontinent with diarrhea, but the examiner commented that he did not appear to have bowel or bladder problems due to his back. The examiner also noted that he had occasional numbness in the toes, but that there was no current numbness, weakness, or tingling in his lower extremities. Spurling's and straight leg raise were negative for bilateral radicular pain. Magnetic resonance imaging (MRI) of the lumbar spine showed DDD with posterior disc bulging at L3-S1, with mild left foraminal narrowing at L4-5 where there was also a small posterior annular tear. The examiner observed that his gait was hip flexed and he could "do slow, painful heel walking." Deep tendon reflexes were normal, and sensation was absent to pinprick and intact to light touch at the bilateral upper and lower extremities. Vibration sensation was decreased bilaterally in the upper and lower extremities, and strength testing was normal. The examiner noted tenderness on palpation, muscle tightness and muscle spasm, as well as guarding severe enough to result in abnormal spinal contour. Range of motion was flexion of 60 degrees, with pain at 40 degrees; extension of 15 degrees, with pain at 15 degrees; lateral flexion in each direction of 20 degrees, with pain at 20 degrees; and lateral rotation in each direction of 10 degrees, with pain at 10 degrees. The examiner diagnosed the Veteran with mild DDD and DJD at L3-S1 without evidence of a left or right lumbosacral radiculopathy. The examiner considered the minimal scoliosis revealed on x-ray to be positional due to its variable presentation. At the April 2015 VA examination, the Veteran reported that he experienced flare-ups and that he saw his chiropractor once a month or more as needed. He contended that his back hurt when he had to lift hay and protein blocks, and that he experienced pain with bending and lifting. Range of motion was flexion of 45 degrees, with pain at 40 degrees; extension of 15 degrees, with pain at 15 degrees; lateral flexion in each direction of 15 degrees, with pain at 15 degrees; and lateral rotation in each direction of 15 degrees, with pain at 15 degrees. There was additional limitation of motion with repetition, with range of motion of flexion at 40 degrees, extension at 10 degrees, lateral flexion in each direction at 15 degrees, and lateral rotation in each direction at 15 degrees. The examiner noted functional loss due to less movement and pain on movement, as well as guarding that did not result in abnormal gait or spine contour. Testing revealed normal muscle strength, normal reflexes, and normal sensory examination. There was no muscle atrophy, but the examiner diagnosed the Veteran with mild bilateral radiculopathy of the lower extremities. There were no other neurological abnormalities. The VA examiner stated that he was unable to determine any decrease in range of motion during flare-ups without speculation because there was "no conceptual or empirical basis for making such a determination without directly observing function under these conditions." The examiner found that the Veteran did not have IVDS, and diagnosed him with lumbosacral DJD and DDD and bilateral lower extremity radiculopathy. Upon review of the evidence, the Board finds that an evaluation in excess of 20 percent for DJD and DDD of the lumbar spine for the entire appeal period is not warranted. The Board notes that VA treatment records, SSA records, and VA examinations in April 2012 and April 2015 do not reflect forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Specifically, the Board finds that during the entirety of the appeal period, the Veteran demonstrated flexion of no worse than 45 degrees, with objective pain at 40 degrees. While the Veteran denied that he experienced flare-ups outside his usual pain pattern at the April 2012 VA examination, he reported flare-ups at the April 2015 VA examination. However, the VA examiner stated that he was unable to determine any decrease in range of motion during flare-ups without speculation because there was "no conceptual or empirical basis for making such a determination without directly observing function under these conditions." Further, the April 2015 VA examination noted at which degree objective evidence of pain began and the maximum end points for each movement. The Board finds that the statement is sufficient to satisfy the Deluca and Mitchell criteria. Therefore, the Board does not find that an evaluation in excess of 20 percent for the entirety of the appeal period is warranted. See 38 C.F.R. § 4.71(a), General Rating Formula. Consideration has been given to an increased evaluation for the Veteran's lumbar spine disability under other potentially applicable diagnostic codes. See Schafrath, 1 Vet. App. at 595. At the April 2012 VA examination, the examiner stated that it was "impossible to clarify how much time [the Veteran] missed in the last year due to any of the [orthopedics] problems" and that there was no physician prescribed bedrest. At the April 2015 VA examination, the examiner found that the Veteran's disability was not manifested by IVDS. Thus, a rating under IVDS is not warranted in this case. The Board further finds that no additional separate ratings are warranted for neurological disorders. In that connection, the Board notes that the Veteran is service connected for radiculopathy of the left and right lower extremities. Further, while the Veteran stated that he had urgent bowel movements and was sometimes incontinent with diarrhea, VA physicians and VA examiners found that he did not have bowel or bladder incontinence due to his lumbar spine disability. In addition, the Veteran specifically denied experiencing any bowel and bladder problems at each VA examination. Thus, the Board finds that no other separate rating for neurological disabilities is warranted. The Board has also considered the Veteran's contentions in his December 2014 Statement of Accredited Representative that his spine was ankylosed. The Board notes that the Veteran is competent to report that he has pain, muscle spasms, tenderness, incoordination, or fatigue. However, when the interpretation of objective medical tests are involved, lay evidence is not competent to assess the severity of the disorder. Thus, because the Diagnostic Code requires measurements of the Veteran's ability to forward flex, or a medical opinion diagnosing favorable ankylosis of the thoracolumbar spine, the Veteran is not competent to render an opinion with respect to the severity of his condition. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (lay evidence is not always competent evidence of a diagnosis or nexus-particularly where complex medical questions or the interpretation of objective medical tests are involved); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Consequently, the Veteran's lay statements with respect to the severity of his service-connected DJD and DDD of the lumbar spine do not constitute competent evidence and have little to no probative value. The Board has also considered whether staged ratings would be warranted. However, the evidence of record does not show that an evaluation in excess of 20 percent for DJD and DDD of the lumbar spine would be warranted at any time during the period on appeal. 38 U.S.C.A. § 5110 (West 2014); see also Hart, 21 Vet. App. at 509-10. The above determinations are based on consideration of the applicable provisions of VA's rating schedule. For all the foregoing reasons, the Board finds that the claim for an evaluation in excess of 20 percent for DJD and DDD of the lumbar spine for the entirety appeal period must be denied. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242-5237. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the AOJ refer the claim for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2015). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is adequate. An evaluation in excess of that assigned is provided for certain manifestations of thoracolumbar spine disabilities, such as forward flexion of 30 degrees or less and favorable ankylosis, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's thoracolumbar spine disability. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. Moreover, even if the schedular evaluation is not found to be adequate in this case, the Veteran has not shown any frequent periods of hospitalization due to his thoracolumbar spine disability. Additionally, the diagnostic criteria adequately take into account his periods of incapacitation. Simply put, the Veteran's thoracolumbar spine disability does not demonstrate an exceptional or unusual disability picture that would warrant referral for extraschedular consideration in this case. ORDER Entitlement to an initial evaluation in excess of 20 percent for DJD and DDD of the lumbar spine is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs