Citation Nr: 1613416 Decision Date: 04/01/16 Archive Date: 04/13/16 DOCKET NO. 12-22 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased initial rating for a lumbar spine disability, rated 10 percent prior to October 19, 2009, and 20 percent as of October 19, 2009. REPRESENTATION Appellant represented by: Katrina J. Eagle, Attorney WITNESS AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1964 to October 1968. The matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated December 2008 and June 2010, of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). In December 2014, the Board remanded this case for further development and the Veteran was provided a VA examination. In addition, VA treatment records were obtained and are associated with the record. The Board is satisfied there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. As of September 18, 2002, the Veteran's herniated nucleus pulpous and degenerative arthritis of lumbar spine was manifested by full range of motion with no evidence of muscle spasm or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. 2. As of June 3, 2006, the Veteran's herniated nucleus pulpous and degenerative arthritis of lumbar spine was manifested by forward flexion to 90 degrees with no evidence of muscle spasm or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. 3. As of May 25, 2010, the Veteran's herniated nucleus pulpous and degenerative arthritis of lumbar spine was manifested by forward flexion to 75 degrees, with muscle spasm and guarding severe enough to be responsible for abnormal gait and abnormal spinal contour. 4. At no time has the Veteran's herniated nucleus pulpous and degenerative arthritis of lumbar spine resulted in ankylosis of the thoracolumbar spine or the entire spine. 5. As of July 28, 2010, the Veteran's herniated nucleus pulpous and degenerative arthritis of lumbar spine was manifested by periods of incapacitation of approximately eight to twelve weeks per year. CONCLUSION OF LAW 1. The criteria for an initial rating in excess of 10 percent were not met for a lumbar spine disability prior to October 19, 2009. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014 & Supp. 2015); 38 C.F.R. 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.21, 4.71a, Diagnostic Codes 5003, 5243 (2015). 2. The criteria for a rating in excess of 20 percent were not met for a lumbar spine disability, prior to July 28, 2010. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014 & Supp. 2015); 38 C.F.R. 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5243 (2015). 3. The criteria for a rating of 60 percent, but not higher, have been met for a lumbar spine disability, as of July 28, 2010, but not earlier. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014 & Supp. 2015); 38 C.F.R. 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5243 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 & Supp. 2015); 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). Moreover, as the appeal of the rating decisions are downstream issues, additional notice is not required. 38 C.F.R. § 3.159(b)(3) (2015); Hartman v. Nicholson, 483 F.3d. 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Thus, VA has satisfied the duty to notify the appellant and had satisfied that duty prior to the adjudication in the March 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. The appellant has not referred to any additional, unobtained, relevant, or other available evidence. VA has obtained examinations with respect to the Veteran's claims that occurred in September 2002, June 2006, February 2008, May 2010, July 2010, and February 2015. Thus, the Board finds that the VA has satisfied the duty to assist with regard to the claim for increased rating. 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). 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 & Supp. 2015); 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). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (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). Schedular ratings for disabilities of the spine are provided by application of The General Rating Formula for Diseases or Injuries of the Spine (General Formula) or by application of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Intervertebral Disc Formula). 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 and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine (2015). Ankylosis is defined, for VA 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 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 weeks 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, 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). The RO has rated the Veteran's back disability under Diagnostic Code 5243. 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. 38 C.F.R. § 4.71a (2015). Diagnostic Code 5003 directs the rater to first determine if a rating is warranted under the criteria for limitation of motion and provides that if the amount of limitation of motion is non-compensable under the criteria for the affected joint then the minimum rating for the affected joint is to be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2015). A rating under Diagnostic Code 5003 cannot be combined with a rating based on limitation of motion. Therefore, no higher or separate rating is warranted pursuant to Diagnostic Code 5003. In an April 1986 Knoxville Neurosurgical Clinic medical treatment report, Dr. T reported that the Veteran complained of pain in the lower legs and back gradually increasing over the past month with noted paraspinous muscle spasm present on examination. In August 1986, Dr. T reported moderate paraspinous muscle spasm. A March 1987 medical treatment record shows that the Veteran complained of cervical pain and spasms. An October 13, 2000, VA medical record shows that the Veteran's range of motion throughout the entire spine was totally normal. In addition, all joints were painless to palpation and of normal appearance and no crepitus was found. The report states that the Veteran "bends to pull on his shoes and socks with no difficulty" and in a sitting-position on the exam table "he bends without any apparent difficulty to touch his chest to his knees." At a September 18, 2002, VA examination, the examiner reported lumbar spine range of motion as full, but noted pain with flexion starting at 110 degrees that went from the low lumbar spine to the right hip area. No paraspinous muscle spasms or deformities were noted. In addition, the examiner reported normal gait and no deformity of posture. The Veteran reported constant pain in the right leg and periodic pain in the left leg. At a June 3, 2006, VA examination, range of motion testing for the thoracolumbar spine showed forward flexion to 90 degrees, extension to 30 degrees, left and right lateral flexion to 30 degrees, and left and right lateral rotation to 30 degrees. No pain on repetitive use was reported. In addition, the examiner reported moderate pain associated with the lumbar spine, mild fatigue, mild decreased motion, mild stiffness, mild weakness and mild muscle spasm. Furthermore, the examiner noted normal gait, no abnormal spinal curvatures, no ankylosis of the spine, no objective evidence of right or left cervical sacrospinalis, and no objective evidence of right or left thoracic sacrospinalis. Objective evidence of mild guarding was found in the right lumbar sacrospinalis; however no muscle spasm, localized tenderness or guarding were reported severe enough to be responsible for abnormal gait and/or abnormal spinal contour. The June 2006 VA examiner did not find ankylosis. A December 2008 rating decision granted service connection and assigned a 10 percent rating effective June 26, 1997. Thereafter, the Veteran requested reconsideration of the assigned disability rating and on October 19, 2009, submitted additional medical evidence from a treating physician. The RO granted the Veteran a 20 percent disability rating, effective October 19, 2009. The Board finds that the evidence does not show forward flexion less than 60 degrees or muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour prior to October 19, 2009, even when considering pain on motion and other limiting factors. Incapacitating episodes were not shown. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent prior to October 19, 2009. 38 U.S.C.A. § 5107(b) (West 2014 & Supp. 2015); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). At a May 25, 2010, VA examination, range of motion testing showed forward flexion to 75 degrees, extension to 20 degrees, left lateral flexion to 18 degrees, right lateral flexion to 22 degrees and left and right lateral rotation to 40 degrees. Objective pain was noted following repetitive motion. Range of motion after repetitive motion showed forward flexion to 68 degrees, extension to 16 degrees, left lateral flexion to 15 degrees, right lateral flexion to 20 degrees and left and right lateral rotation to 40 degrees. The examiner noted an abnormal gait with a noted slight limp in the right leg and an abnormal spine curvature due to lumbar flattening. Other objective abnormalities of the thoracic sacrospinalis noted were bilateral muscle spasm, bilateral guarding, bilateral tenderness, and bilateral weakness. Muscle spasm, localized tenderness, and guarding were severe enough to be responsible for the abnormal gait and abnormal spinal contour. In addition, the examiner noted positive results for lasegue's test. The May 2010 examiner found no incapacitating episodes of spine disease. At a July 28, 2010, VA examination, the Veteran's range of motion for the thoracolumbar spine showed forward flexion to 45 degrees, extension to 10 degrees, left lateral flexion to 10 degrees, left lateral rotation to 10 degrees, right lateral flexion to 20 degrees, and right lateral rotation to 20 degrees. Pain was noted following repetitive motion and the examiner was unable to test additional repetitive limitation due to baseline pain. Markedly painful response range of motion testing was noted for the right hip with straight leg raise painful at about 30 degrees. In addition, the examiner noted objective joint abnormalities of the hips limiting excursion for flexion of both hip joints due to aggravation of back pain. The examiner noted tenderness and guarding in cervical and lumbar paraspinous areas with loss of lumbar lordosis. No ankylosis was found. Therefore, the Board finds that the medical evidence of record shows that the Veteran has not exhibited a forward flexion of the thoracolumbar spine to 30 degrees or less, or ankylosis of the spine or thoracolumbar spine. The Board has also considered pain on motion, but that pain and other functional limitation factors are not shown to have further limited the range of flexion to 30 degrees or less. Incapacitating episodes sufficient to warrant a higher rating were not shown. Therefore, the Board finds that, pursuant to General Formula, the preponderance of evidence is against a rating in excess of 20 percent as of October 19, 2009, and prior to July 28, 2010. 38 U.S.C.A. § 5107(b) (West 2014 & Supp. 2015); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, the July 28, 2010, examination also shows that the Veteran reported three to four episodes per year when he had exacerbations of pain beyond his daily pain management with narcotic pain medication. During those episodes, lasting two to three weeks, the Veteran stated he was limited to bedrest and that those periods of incapacitation approximated eight to twelve weeks per year. The Veteran's lay statements are corroborated by an October 2013 medical report. In that report, the Veteran's physician states that the Veteran was prescribed bed rest during severe incapacitating episodes, usually requiring ten to twenty days of rest. Moreover, the episodes occurred "three to four (sometimes more) times a year." Accordingly, pursuant to the Intervertebral Disc Formula, the Board finds that a rating of 60 percent is warranted as of July 28, 2010. The Board also notes that a February 2015 VA examination did not show that the Veteran exhibited forward flexion of the thoracolumbar spine to 30 degrees or less, or ankylosis of the spine. Therefore, a higher rating than those already contemplated above based on the General Formula is not warranted. Furthermore, as the Board finds that the Veteran warrants a rating at 60 percent, the highest rating available pursuant to the Intervertebral Disc Formula, any further contemplation of a higher rating based on those criteria is not warranted. Ankylosis is not shown to warrant any higher rating. The Board has also considered whether an extraschedular rating is warranted. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); Fisher v. Principi, 4 Vet. App. 57 (1993); 38 C.F.R. § 3.321(b)(1) (2015). Factors for consideration in determining whether referral for an extraschedular rating is necessary include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1) (2015). Any interference with employment is contemplated by the Veteran's total disability rating based on individual unemployability, granted effective July 28, 2010, in consideration of herniated nucleus pulpous and degenerative arthritis of lumbar spine, in addition to other service-connected disabilities. Furthermore, the Board finds that frequent hospitalizations are not shown. Thus, the Board finds that referral for extraschedular consideration is not warranted. The evidence of record shows that the Veteran's service-connected herniated nucleus pulpous and degenerative arthritis of lumbar spine, and other service-connected disabilities are adequately contemplated by the ratings currently assigned. The schedular rating criteria under the General Formula also provide for higher ratings for more severe symptomatology, which is not shown. 38 C.F.R. § 3.321(b)(1) (2015); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability, prior to October 19, 2009, is denied. Entitlement to a rating in excess of 20 percent for a lumbar spine disability, prior to July 28, 2010, is denied. Entitlement to a rating of 60 percent, but not higher, for a lumbar spine disability, as of July 28, 2010, but not earlier, is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs