Citation Nr: 1612706	
Decision Date: 03/29/16    Archive Date: 04/07/16

DOCKET NO.  09-47 157	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUES

1. Entitlement to an increased rating in excess of 30 percent for bilateral pes planus with osteoarthritic changes.

2. Entitlement to an increased rating in excess of 10 percent prior to March 11, 2015, and 20 percent thereafter for chronic lumbar strain. 



REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

Kristi L. Gunn, Counsel


INTRODUCTION

The Veteran served on active duty from August 1975 to August 1978 and from November 1979 to May 1980. The discharge from the second period of service was found to be of such nature as to represent a bar to VA benefits stemming from that period of service. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Wichita, Kansas, Department of Veterans Affairs (VA) Regional Office (RO). 

In November 2011, the Veteran testified at a Decision Review Officer (DRO) hearing. A copy of the transcript has been associated with the electronic file. 

In April 2011 and December 2014, the Board remanded the claims for additional development and adjudicative action. The case was returned to the Board for further appellate review.

In an April 2015 rating decision, the RO increased the Veteran's disability rating for his service-connected back disability to 20 percent disabling, effective March 11, 2015. Applicable law mandates that when a Veteran seeks an increased rating, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993).



The current appeal was processed as part of the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems.


FINDINGS OF FACT

1. The Veteran's service-connected bilateral pes planus with osteoarthritic changes is manifested by subjective complaints of pain and swelling, without objective evidence of marked pronation; extreme tenderness of plantar surfaces of the feet; or marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 

2. Prior to March 11, 2015, the Veteran's service-connected chronic lumbar strain is manifested by subjective complaints of pain, but objectively, no evidence of 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. 

3. As of March 11, 2015, the Veteran's service-connected chronic lumbar strain is manifested by subjective complaints of pain and limited range of motion, but objectively, no evidence of unfavorable ankylosis of the entire thoracolumbar spine.


CONCLUSIONS OF LAW

1. The criteria for an increased rating in excess of 30 percent for bilateral pes planus with osteoarthritic changes are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.71a, Diagnostic Code (DC) 5276 (2015).

2. Prior to March 11, 2015, the criteria for an increased rating in excess of 10 percent for chronic lumbar strain are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.71a, DC 5242 (2015).

3. As of March 11, 2015, the criteria for an increased rating in excess of 20 percent for chronic lumbar strain are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.71a, DC 5242 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 





VA's Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's 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). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in November 2008. This letter advised the Veteran of what evidence was required to substantiate his claims, and of his and VA's respective duties for obtaining evidence. This letter provided notice informing the Veteran that to substantiate his increased rating claims, he needed to submit evidence that his service-connected disabilities have increased in severity. The letter also advised him as to how disability ratings and effective dates are assigned. 

With regard to the notice requirements pertaining to an increased-rating claim, there need only be generic notice advising the Veteran of the evidentiary and legal criteria for establishing his entitlement to a higher rating, not also citation to alternative diagnostic codes or potential "daily life" evidence, etc. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), overruling Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 

With respect to the timing of VCAA notice, the United States Court of Appeals for Veterans Claims (Court) and Federal Circuit Court have held that VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II); Pelegrini II, 18 Vet. App. at 120. In the present case, the RO issued the required VCAA notice prior to the January 2009 rating decision on appeal. Thus, there is no timing error. 

With respect to the duty to assist, the RO has secured the Veteran's service treatment records (STRs) and VA treatment records. The Veteran was also afforded VA examinations in November 2008, November 2011, and March 2015. The examinations are adequate because the examiners' findings reflect the current severity of his disabilities and the medical evidence in his electronic file is not such that it would change the outcome of the examiner's findings. 

The RO substantially complied with the Board's April 2011 and December 2014 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). The Veteran had a DRO hearing at the local RO in November 2011, additional VA treatment records were obtained, and he was afforded new VA examinations to determine the current severity of his service-connected disabilities. The RO has substantially complied with the Board's instructions. In summary, the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2014).

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claims. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issues have been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2015).





The Merits of the Increased Rating Claims

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. 

If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered 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 her disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

The Veteran filed an increased rating claim in November 2008. The Veteran's entire history is reviewed when assigning a disability evaluation per 38 C.F.R. § 4.1. However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). That is to say, the Board must consider whether there have been times when his service-connected disabilities have been more severe than at others, and rate them accordingly.

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. Layno v. Brown, 6 Vet. App. 465, 469 (1994).

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 (2015); 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 (2011). 

Instead, the Court in Mitchell 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, 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. See 38 C.F.R. §§ 4.40, 4.45 (2015). 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. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).




Merits of the Increased Rating Claim for the
 Service-Connected Bilateral Foot Disability

The Veteran's service-connected bilateral pes planus with osteoarthritic changes is rated under 38 C.F.R. §§ 4.20, 4.71a, DC 5276. Under DC 5276, a 10 percent rating is warranted for moderate flatfoot with the weight-bearing line being over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet. A 30 percent rating is warranted for severe bilateral flatfoot manifested by objective evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use, an indication of swelling on use, and characteristic callosities. A 50 percent rating is warranted for pronounced bilateral flatfoot manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. Id.

In November 2008, the Veteran was afforded a VA examination for his service-connected bilateral foot disability. He reported that his daily pain, but denied having any swelling, heat, redness, stiffness, fatigability, weakness, or lack of endurance. He admitted to having flare-ups, lasting less than one day and occurring weekly or more often. The Veteran stated that the flare-ups are caused by standing for long periods of time. He admitted to only being able to stand for approximately fifteen to thirty minutes and walk approximately one to three miles. 

Upon physical examination testing of the feet, the examiner noted objective evidence of painful motion over the metatarsals of both feet, along with tenderness over the right and left medial arches and abnormal weight bearing based on callosities and unusual shoe wear pattern. There was no objective evidence of swelling, instability, weakness, or muscle atrophy of the feet. There was also no evidence of forefoot or midfoot malalignment. The examiner noted the presence of pronation, and characterized such pronation as being mild. X-ray testing reflected mild to moderate degenerative arthritic changes of the first metatarsophalangeal joint of the right foot and moderate degenerative changes of the first metatarsophalangeal joint of the left foot. 
The examiner diagnosed the Veteran with bilateral hallux valgus, bilateral pes planus, and degenerative joint disease of both feet. The examiner determined that his bilateral hallux valgus and bilateral pes planus had no effect on his daily activities, but the degenerative joint disease of both feet mildly effected his driving; and moderately effected his chores, shopping, exercise, and sports. There was no effect on recreation, traveling, feeding, bathing, dressing, toileting, and grooming. 

In November 2011, the Veteran was afforded a VA examination. The Veteran reported a great deal of pain in his feet. Upon physical examination testing, there was noted pain on use of both feet with the pain being accentuated on use, right foot swelling, and characteristic calluses on both feet. There was no pain on manipulation of the feet or extreme tenderness of plantar surface of the feet. The examiner noted objective evidence of marked deformity of both feet and signs of hallux valgus of the great toes and bunions, but no evidence of marked pronation. There was also inward bowing of the Achilles' tendon foot valgus with lateral deviation of the heel in both feet. X-ray testing showed degenerative or traumatic arthritis of both feet, and the examiner concluded that the Veteran's bilateral pes planus impacts his ability to work as he cannot stand for long periods of time due to his arches cramping and feet hurting. He was diagnosed with bilateral pes planus and bilateral hallux valgus. 

During a March 2015 VA examination, the Veteran reported daily foot pain, cramping in the soles of his feet, stiffness, and swelling in the area of the bunions. The Veteran described the location of the pain near the arch of the feet and in the toes. He admitted to having moderate flare-ups approximately three to four days, and lasting for several hours. He explained that during flare-ups he cannot stand or walk very long or far. He stated that a warm soak helps to alleviate the flare-ups. He denied having heat, instability, giving way, locking, or loss of motion.  

Upon physical examination testing, the examiner noted bilateral pain on use of the feet and pain accentuated on use of the feet. There was pain on manipulation of the feet, as well as characteristic callouses of the feet. The examiner explained that the Veteran has pain on weightbearing of both feet, and the presence of pain, weakness, fatigability, or incoordination limits functional ability during flare-ups or when the foot is used repeatedly over a period of time. There were no signs of swelling or extreme tenderness of plantar surfaces of both feet. There was decreased longitudinal arch height of both feet with objective evidence of marked deformity of both feet and "inward" bowing of the Achilles tendon. The examiner noted the absence of marked pronation of the feet, marked inward displacement and severe spasm of the Achilles tendon on manipulation of one or both feet, and Morton's neuroma. The examiner noted the presence of hallux valgus in both feet with mild or moderate symptoms. 

The examiner indicated that the right foot shows mild tenderness at the hallux valgus site, and the left foot reflects moderate tenderness at the site. X-ray testing showed bilateral degenerative or traumatic arthritis and mild to moderate bilateral hallux valgus deformity. The examiner again noted that the Veteran's foot pain prevents him from standing very long and being unable to walk long distances. He was diagnosed with bilateral pes planus, bilateral hallux valgus, and bilateral degenerative arthritis. 

The criteria for a disability rating in excess of 30 percent under DC 5276 have not been met. As previously stated, in order to warrant the next-higher 50 percent rating under DC 5276, the Veteran's service-connected bilateral foot disability must exhibit pronounced bilateral pes planus with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. The Veteran's disability has been characterized as severe, and there is no indication that the severity of the disability has been described as pronounced. There are complaints of pain and swelling of the feet, but there is no objective evidence of marked pronation, extreme tenderness, or marked inward displacement and severe spasm of the achillis tendon on manipulation. The absence of the objective evidence as noted in VA examiners' conclusions, demonstrates the overall severe, but not pronounced, nature of the Veteran's disability. Therefore, a higher disability rating under DC 5276 is not warranted for the Veteran's service-connected bilateral foot disability.

In addition to DC 5276, the Board has considered whether evaluation of the service-connected bilateral foot disability under any alternative diagnostic code would provide a basis for a higher rating. The evidence of record shows that the Veteran has been diagnosed with bilateral hallux valgus. Specifically, all three examiners diagnosed the Veteran with bilateral hallux valgus. Under DC 5280, unilateral hallux valgus operated with resection of metatarsal head warrants a 10 percent rating and unilateral hallux valgus, severe, if equivalent to amputation of the great toe warrants a 10 percent rating. Although the Veteran has been diagnosed with hallux valgus bilaterally, there is no evidence showing that it is equivalent to amputation of the great toe or operated with resection of metatarsal head. More importantly, the Veteran is currently receiving a 30 percent rating, higher than the 10 percent rating under DC 5280. Therefore, the criteria for a higher or separate rating under DC 5280 have not been met. 

The Board has also considered DC 5284, residuals of other foot injuries. Under this code, moderate residuals of foot injuries are rated 10 percent, moderately severe residuals of foot injuries are rated 20 percent, and severe residuals of foot injuries are rated 30 percent. A note to DC 5284 provides that foot injuries with actual loss of use of the foot are to be rated 40 percent. 38 C.F.R. § 4.71a. There is no objective evidence of loss of use of the foot in order to receive the 40 percent disability rating under DC 5284. As such, a higher rating is not warranted under DC 5284. There is also no evidence of the Veteran having bilateral weak foot; claw foot; Morton's disease; hallux rigidus; hammer toes; or malunion of, or nonunion of tarsal or metatarsal bones. Thus, a higher rating is not warranted under DCs 5277, 5278, 5279, 5280, 5281, 5282, 5283, and 5284.

The clinical evidence does not show that Veteran's bilateral foot disability has been manifested by symptomatology that equates to pronounced bilateral disability even when considering 38 C.F.R. §§ 4.40, 4.45 and the Court's holding in DeLuca, supra. The Board has considered sections 4.40 and 4.45 and DeLuca, supra, as the evidence shows the Veteran experiences pain and swelling while demonstrating movement in his feet; however, the lay and medical evidence of record does not reflect that his pain has been so disabling to result in a pronounced foot disability warranting the next-higher 50 percent rating under DC 5276.

While the record reflects findings of arthritis in the foot, such diagnosis does not provide a basis for a higher, or additional, rating. Under 38 C.F.R. § 4.71a, DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved; or, if limitation of motion is noncompensable, a maximum 20 percent rating is assignable under DC 5003, under certain circumstances, for limited and/or painful motion. While there is no specific diagnostic code for limitation of the foot, as noted, the current rating for the bilateral foot disability is primarily based upon the Veteran's reports of pain and limitation of motion, the same manifestations upon which arthritis is evaluated. Evaluation of the same manifestations under different diagnoses, or "pyramiding," is precluded by 38 C.F.R. § 4.14. 

Based upon Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has also considered whether staged ratings are appropriate. Since, however, the Veteran's symptoms have remained constant at a 30 percent level for his bilateral foot disability, staged ratings are unjustifiable. 

The Veteran has submitted no evidence showing that his service-connected bilateral foot disability has markedly interfered with his employment status beyond that interference contemplated by the assigned rating and there is also no indication that the service-connected disability has necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal. Rather, all symptoms described above have been fully contemplated by the criteria of DC 5276, taking into account 38 C.F.R. §§ 4.40 and 4.45 as well. Therefore, the Board finds that the scheduler criteria adequately describe the Veteran's bilateral foot disability. A remand to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases is not appropriate. See Thun v. Peake, 22 Vet. App. 11 (2008). 

The Veteran is competent to report his symptoms, and the Board does not doubt the sincerity of the Veteran's belief that his service-connected bilateral foot disability has worsened. However, the objective clinical findings do not support his assertions for the reasons stated above. The preponderance of the evidence is against the Veteran's claim and an increased rating in excess of 30 percent for bilateral pes planus with osteoarthritic changes is denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55.

Merits of the Increased Rating Claim 
for the Service-Connected Back Disability

The Veteran's service-connected lumbar spine disability is currently evaluated under 38 C.F.R. § 4.71a, DC 5242. All spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Degenerative arthritis of the spine and spondylolisthesis or segmental instability are to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (DC 5243), whichever method results in the higher rating. 

Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted when the forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The criteria for a 30 percent rating pertain only to the cervical spine and are therefore not applicable in this case. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. 

The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243 (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. Id.at Note (1) (2015).

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 normal combined range of motion of the thoracolumbar spine is 240 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 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. 





Prior to March 11, 2015

In November 2008, the Veteran was afforded a VA examination for his service-connected back disability. He reported continuing pain in his back since an in-service injury. The Veteran admitted to having fatigue, decreased motion, and stiffness associated with his service-connected back disability. He denied having any weakness, spasms, or pain associated with it. The Veteran also informed the examiner of mild flare-ups occurring on a weekly basis and lasting for several hours. He explained that the flare-ups occur with increased use and standing for long periods of time and are often alleviated with rest. 

Upon physical examination testing, the examiner noted the Veteran's gait to be normal with a normal posture, and no signs of gibbus, kyphosis, list, lumbar flattening, lumbar lordosis, scoliosis, or reverse lordosis. Range of motion testing reflected forward flexion to 80 degrees with pain beginning at 60 degrees, extension to 25 degrees with pain beginning at 20 degrees, right lateral flexion to 30 degrees with pain beginning at 20 degrees, left lateral flexion to 30 degrees with pain beginning at 20 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. The examiner noted pain on active motion, passive motion, and after repetitive use during flexion, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. 

The examiner concluded that there was no additional loss of motion on repetitive use and no signs of thoracolumbar spine ankylosis. There was evidence of bilateral guarding, bilateral pain with motion, and bilateral tenderness, but no evidence of spasms, atrophy, or weakness. Motor examination testing results were normal or 5/5 for bilateral elbow flexion, bilateral elbow extension, bilateral wrist flexion, bilateral wrist extension, bilateral finger flexors, bilateral finger abduction, bilateral thumb opposition, bilateral hip flexion, bilateral hip extension, bilateral knee extension, bilateral ankle plantar flexion, and bilateral great toe extension. Muscle tone was normal, and there were no signs of muscle atrophy. Sensory examination testing results were normal for the bilateral upper and lower extremities. Reflex examination testing was 2+ or normal for the bilateral biceps, bilateral triceps, bilateral brachioradialis, bilateral finger jerk, bilateral abdominal, bilateral knee jerk, bilateral ankle jerk, and bilateral plantar (Babinski). X-ray testing showed bilateral L5 pars interarticularis defect with no subluxation. The examiner diagnosed the Veteran with degenerative joint disease of the lumbar spine. The examiner noted that his service-connected lumbar spine disability has a mild effect on chores, shopping, and sports; moderate effect on exercise; and no effect on recreation, traveling, feeding, bathing, dressing, toileting, and grooming. 

During a November 2011 VA examination, the Veteran reported flare-ups associated with his service-connected back disability, with nightly pain and low back spasms. He stated that the pain is worse at night after working a full day. 

Upon physical examination testing, the examiner noted localized tenderness or pain to palpation on L4/L5. There was guarding or muscle spasms present but not resulting in an abnormal gait or spinal contour. Range of motion testing reflected forward flexion to 90 degrees or greater with painful motion beginning at 30 degrees, extension to 30 degrees or greater with painful motion beginning at 0 degrees, right lateral flexion to 30 degrees or greater with painful motion beginning at 30 degrees or greater, left lateral flexion to 30 degrees or greater with painful motion beginning at 30 degrees or greater, right lateral rotation to 30 degrees or greater with painful motion beginning at 30 degrees or greater, and left lateral rotation to 30 degrees or greater with painful motion beginning at 30 degrees or greater. After repetitive-use testing with three repetitions, range of motion testing showed post-test forward flexion to 90 degrees or greater, post-test extension to 30 degrees or greater, post-test right lateral flexion to 30 degrees or greater, post-test left lateral flexion to 30 degrees or greater, post-test right lateral rotation to 30 degrees or greater, and post-test left lateral rotation to 30 degrees or greater. There was no additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. 

The examiner noted the presence of functional loss and/or functional impairment of the thoracolumbar spine with a contributing factor of pain on movement. Muscle strength testing showed 5/5 or normal strength for bilateral hip flexion, bilateral knee extension, bilateral ankle plantar flexion, bilateral ankle dorsiflexion, and bilateral great toe extension. Reflex testing was 2+ or normal for both knees and ankles. Sensory examination testing results were normal for the bilateral upper anterior thigh (L2), bilateral thigh/knee (L3/4), bilateral lower leg/ankle (L4/L5/S1), and bilateral foot/toes (L5). There was no evidence of muscle atrophy or IVDS of the thoracolumbar spine. Straight leg raising test results were negative, and there no were no signs or symptoms due to radiculopathy. X-ray results showed early/minimal spondylosis in the lower thoracic spine with some desiccation at T11-T12. Veteran was diagnosed with back strain and degenerative joint disease. 

VA outpatient treatment records reflect continuing complaints and treatment for the Veteran's lumbar spine disability. However, no range of motion testing was conducted at the outpatient visits. 

The criteria for a disability rating in excess of 10 percent, prior to March 11, 2015, has not been met. As previously stated, in order to warrant the next-higher 20 percent rating under the General Rating Formula, the Veteran must demonstrate forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Such has not been shown in this case. 

At the November 2008 and November 2011 VA examinations, the Veteran demonstrated forward flexion to 80 degrees and 90 degrees, respectively. The combined range of motion of the thoracolumbar spine was 171 degrees at the November 2008 VA examination and 240 degrees at the November 2011 VA examination. Both are greater than 120 degrees and in fact, the combined range of motion was normal at the November 2011 examination. The November 2011 VA examiner noted that there was guarding and/or muscle spasms present, but not resulting in an abnormal gait or spinal contour. Therefore, a rating in excess of 10 percent, prior to March 11, 2015, for the Veteran's service-connected lumbar spine disability under the General Rating Formula is not warranted. 

A higher rating is also not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. At no time has the Veteran experienced an incapacitating episode associated with his service-connected lumbar spine disability. More importantly, there is no evidence of the Veteran being diagnosed with IVDS. A rating in excess of 10 percent for the Veteran's service-connected lumbar spine disability is not warranted based on the frequency of physician prescribed incapacitating episodes as contemplated by DC 5243.

The General Rating Formula also provides that neurologic abnormalities associated with disabilities of the spine are to be separately evaluated under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The November 2008 and November 2011 examiners did not mention any neurologic abnormalities or findings related to the service-connected lumbar spine disability. Specifically, the examiner noted that muscle strength testing was normal, and deep tendon reflexes were normal. Thus, the medical evidence of record does not show associated objective neurologic abnormalities of bowel or bladder impairment so that a separate neurological disability rating, as it applies to his service-connected lumbar spine disability is warranted. 

As mentioned previously, the Veteran's service-connected back disability is currently evaluated under 38 C.F.R. § 4.71a, DC 5242. DC 5242 references Diagnostic Code 5003. Under DC 5003 (degenerative arthritis), if the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. 38 C.F.R. § 4.71a. Here, the Veteran has a compensable rating because of limitation of motion, so DC 5003 is inapplicable. As such, the Veteran is rated under the General Rating Formula for Diseases and Injuries of the Spine.

The Board has also considered whether a higher rating is warranted on the basis of functional loss due to pain, weakness, fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Based upon the results from the November 2008 and November 2011 examinations, both examiners determined that there were no additional degrees lost due to pain, fatigue, or lack of endurance following repetitive use. Although the evidence does show that the Veteran experiences painful motion; it does not result in a higher rating unless it actually results in additional functional loss. See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7.

The Veteran has submitted no evidence showing that his lumbar spine disability has markedly interfered with his employment status beyond that interference contemplated by the assigned rating and there is also no indication that this service-connected lumbar spine disorder has necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal. Rather, all symptoms described above have been fully contemplated by the criteria of DC 5242, taking into account 38 C.F.R. §§ 4.40 and 4.45 as well. A remand to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extraschedular evaluations in "exceptional" cases is not appropriate. See Thun v. Peake, 22 Vet. App. 11 (2008).

The Veteran is competent to report his symptoms, and the Board does not doubt the sincerity of the Veteran's belief that his service-connected back disability has worsened. However, the objective clinical findings do not support his assertions for the reasons stated above. The preponderance of the evidence is against the Veteran's claim and an increased rating in excess of 10 percent for chronic lumbar strain, prior to March 11, 2015, must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55.

As of March 11, 2015

At a March 2015 VA examination, the Veteran reported that sitting down usually alleviates pain after standing for a long period of time, along with stiffness and loss of motion. The Veteran also reported flare-ups approximately three to four days. He described them as moderate and lasting for several hours. 

Upon physical examination testing, the examiner noted the presence of localized tenderness or pain on palpation of the joints and/or soft tissue of the thoracolumbar spine. Specifically, there was mild tenderness in the mid-upper lumbar spine area and mild tenderness in the left upper lumbar paravertebral area. There was also guarding of the thoracolumbar spine not resulting in an abnormal gait or abnormal spinal contour, or ankylosis of the spine. Physical examination testing of the spine reflected forward flexion to 35 degrees, extension to 25 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 25 degrees. The examiner noted the presence of pain during range of motion testing, but noted that it does not result or cause functional loss. Upon repetitive-use testing with at least three repetitions, there was no additional loss of function or range of motion. 

The examiner reported that the examination was being conducted during a flare-up and indicated that pain, weakness, fatigability or incoordination significantly limits functional ability with flare-ups. Muscle strength testing results reflected 5/5 or normal strength for bilateral hip flexion, bilateral knee extension, bilateral ankle plantar flexion, bilateral great toe extension. There was no evidence of muscle atrophy. Reflex examination testing was 1+ or hypoactive for the knees and ankles. Sensory examination testing results were normal for the bilateral upper anterior thigh (L2), bilateral thigh/knee (L3/4), bilateral lower leg/ankle (L4/L5/S1), and bilateral foot/toes (L5). Straight leg raising results were negative for the right and left leg, and there were no signs or symptoms due to radiculopathy, neurologic abnormalities, or IVDS of the thoracolumbar spine. X-ray testing reflected the presence of arthritis, and the examiner diagnosed the Veteran with lumbosacral strain and degenerative arthritis of the spine. 

VA outpatient treatment records reflect continuing complaints and treatment for the Veteran's lumbar spine disability. However, no range of motion testing was conducted at the outpatient visits.

The criteria set forth above, the criteria for a disability rating in excess of 20 percent, as of March 11, 2015, has not been met. As previously stated, in order to warrant the next-higher 40 percent rating under the General Rating Formula, the Veteran must demonstrate forward flexion of the thoracolumbar spine to 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. Such has not been shown in this case. At the March 2015 VA examination, the Veteran demonstrated forward flexion to 35 degrees and there is no showing of favorable ankylosis of the thoracolumbar spine. Therefore, a rating in excess of 20 percent, as of March 11, 2015, for the Veteran's service-connected lumbar spine disability under the General Rating Formula is not warranted. 

A higher rating is also not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. At no time has the Veteran experienced an incapacitating episode associated with his service-connected back disability. More importantly, there is no evidence of the Veteran being diagnosed with IVDS. A rating in excess of 20 percent for the Veteran's service-connected lumbar spine disability is not warranted based on the frequency of physician prescribed incapacitating episodes as contemplated by DC 5243.

The General Rating Formula also provides that neurologic abnormalities associated with disabilities of the spine are to be separately evaluated under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The March 2015 examiner did not mention any neurologic abnormalities or findings related to the service-connected lumbar spine disability. Specifically, the examiner noted that muscle strength testing was normal and deep tendon reflexes were normal. Thus, the medical evidence of record does not show associated objective neurologic abnormalities of bowel or bladder impairment so that a separate neurological disability rating, as it applies to his service-connected lumbar spine disability is warranted. 

The Board has considered whether an additional rating is available based on degenerative arthritis of the spine under DC 5003, however, such is not warranted in this case. Indeed, to grant such an additional rating would violate the law against pyramiding, which specifically states that the rating of the same manifestations under various diagnoses is to be avoided. See 38 C.F.R. § 4.14. Here, the arthritis code directs that the disability be rated based on the particular limitation of motion codes; only if the disability does not warrant a rating under those codes is a rating solely for arthritis appropriate. As explained above, the Veteran's limitation of motion of the thoracolumbar spine has been found to be compensable at the 20 percent level under 38 C.F.R. § 4.71, Diagnostic Code 5242 (2015). Therefore, a separate rating based on arthritis is not warranted in this case.

The Board has also considered whether a higher rating is warranted on the basis of functional loss due to pain, weakness, fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).  Based upon the results from the March 2015 examination, the examiner determined that there were no additional degrees lost due to pain, fatigue, or lack of endurance following repetitive use. Although the evidence does show that the Veteran experiences painful motion, along with weakness, fatigability or incoordination; it does not result in a higher rating unless it actually results in additional functional loss. See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7.

The Veteran has submitted no evidence showing that his back disability has markedly interfered with his employment status beyond that interference contemplated by the assigned rating and there is also no indication that this service-connected back disability has necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal. Rather, all symptoms described above have been fully contemplated by the criteria of DC 5242, taking into account 38 C.F.R. §§ 4.40 and 4.45 as well. A remand to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extraschedular evaluations in "exceptional" cases is not appropriate. See Thun v. Peake, 22 Vet. App. 11 (2008).

The Veteran is competent to report his symptoms, and the Board does not doubt the sincerity of the Veteran's belief that his service-connected lumbar spine disability has worsened. However, the objective clinical findings do not support his assertions for the reasons stated above. The preponderance of the evidence is against the Veteran's claim and an increased rating in excess of 20 percent for chronic lumbar strain, as of March 11, 2015, must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55.



ORDER

A rating in excess of 30 percent for bilateral pes planus with osteoarthritic changes is denied. 

Prior to March 11, 2015, a rating in excess of 10 percent for chronic lumbar strain is denied. 

As of March1, 2015, a rating in excess of 20 percent for chronic lumbar strain is denied. 




______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs