Citation Nr: 1617938 Decision Date: 05/04/16 Archive Date: 05/13/16 DOCKET NO. 10-08 420A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for degenerative disc disease (DDD) of the lumbar spine, evaluated as 40 percent disabling prior to April 1, 2009 and 20 percent thereafter, to include the propriety of the rating reduction. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which reduced the Veteran's disability rating from 40 percent to 20 percent for DDD of the lumbar spine. The issue was remanded for further development by the Board in February 2013. The issue is once again before the Board. FINDINGS OF FACT The preponderance of the evidence shows that the Veteran's DDD of the lumbar spine frequently manifested with limited motion of 30 degrees of flexion or less; sustained improvement has not been shown. CONCLUSIONS OF LAW 1. The criteria for restoration of a 40 percent disability rating for DDD of the lumbar spine have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.105(e), 4.71a, Diagnostic Code 5243 (2015). 2. The criteria for a disability rating in excess of 40 percent for DDD of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.71a, Diagnostic Code 5243 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2015). In this case, compliant VCAA notice was provided by letter dated in June 2008. Concerning the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records (STRs), post-service treatment records, and VA examination reports. The Board also notes that actions requested in the prior remand have been undertaken. Indeed, requests for medical records were documented in the claims file and outstanding VA treatment records were obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). After a careful review of the file, 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). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2015); see also 38 C.F.R. §§ 4.45, 4.59 (2015). 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). The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection for DDD of the lumbar spine was established in a December 2007 rating decision, with a 40 percent rating assigned. The Veteran filed a claim for an increased rating in May 2008. Thereafter, a September 2008 rating decision proposed to reduce the rating for DDD of the lumbar spine to 20 percent, and that reduction was implemented in the December 2008 rating decision, effective April 1, 2009. The Veteran's DDD of the lumbar spine is rated under Diagnostic Code 5243 for intervertebral disc syndrome. Disabilities that fall under Diagnostic Code 5243 are rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever results in the higher evaluation. The General Rating Formula assigns, in pertinent part, a 20 percent rating 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. Forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, warrants a 40 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities are separately rated under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1) (2015). Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note (2). Fixation of a spinal segment in neutral position (zero degrees) represents favorable ankylosis. Id. at Note (5). Alternatively, the Veteran's DDD can be evaluated under the IVDS Formula. With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, a 20 percent rating is assigned. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent rating is assigned. With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is assigned. 38 C.F.R. § 4.71a. An incapacitating episode is 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 (2015). Initially, the Board will address the rating reduction. VA regulations provide that where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance is to be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). The beneficiary will be notified of the contemplated action and will be given 60 days for the presentation of additional evidence to show that compensation should be continued at the present level. Id. The Board notes that the RO complied with appropriate due process procedures concerning the rating reduction. Following a review of the record, the Board finds, after resolving all doubt in the Veteran's favor, that the reduction was not proper. The Board notes the 40 percent rating for DDD of the lumbar spine was in effect for less than 5 years, therefore the requirements set forth in 38 C.F.R. § 3.344 governing rating reductions do not apply. However, the Court has held that a rating reduction must be based on improvement in a disability that reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 418 (1993). Turning to the evidence, VA examination in September 2008 found flexion to 40 degrees following repetition with an inability to flex further. That examination also noted the Veteran's reports of flare-ups and significant discomfort in day to day activities and while sleeping. Similarly, a November 2008 VA treatment record showed flexion to 45 degrees with tenderness. However, a November 2009 VA treatment record showed flexion to 15 degrees at maximum with positive spasm. A May 2010 VA treatment record showed back spasms with decreased range of motion to 20 degrees of flexion. During the December 2010 VA examination, the Veteran's forward flexion was noted to 30 degrees with pain throughout flexion. A January 2012 treatment record showed flexion to 30 degrees. An August 2013 VA treatment record showed chronic low back pain with range of motion to 30 degrees. In sum, when considering the Veteran's overall disability picture, the evidence does not reflect that the Veteran's DDD of the lumbar spine showed actual improvement under the ordinary conditions of life and work. Accordingly, after resolving all doubt in the Veteran's favor, the Board finds that restoration of the 40 percent rating, from April 1, 2009, is warranted. Turning to the question of entitlement to a rating in excess of 40 percent, the Board notes that the Veteran is currently in receipt of separate compensable ratings for radiculopathy of both lower extremities. The Veteran did not appeal the ratings assigned to these disabilities and those conditions are not presently before the Board. Any symptomatology associated with those conditions cannot be considered in evaluating the Veteran's DDD of the lumbar spine. 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). To receive a disability rating in excess of 40 percent for DDD of the lumbar spine, the evidence must show unfavorable ankylosis of the thoracolumbar spine or incapacitating episodes of DDD having a total duration of at least 6 weeks during the past 12 months. Concerning ankylosis, both the VA treatment records and VA examination reports note the Veteran has motion is his spine; thus it is not ankylosed. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Indeed, VA examinations in September 2008 and December 2010 also note no ankylosis of the spine. The Board acknowledges that the March 2011 VA examiner stated there was ankylosis of the thoracolumbar spine. In the same examination, however, he reported active flexion of the spine to 60 degrees. In any event, to warrant a rating in excess of 40 percent, the evidence must show unfavorable ankylosis. Unfavorable ankylosis is defined, in pertinent part, as a condition in which the entire thoracolumbar 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. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). As the evidence does not reflect the Veteran's lumbar spine is fixed in flexion or extension, a higher rating is not warranted based on unfavorable ankylosis. Moreover, other than the already service-connected radiculopathy of the lower extremities, the VA examiners found no other neurological disabilities attributed to his DDD of the lumbar spine. Additionally, a higher rating is not warranted under the IVDS Formula. Initially, the Board notes that beginning December 29, 2010, the combined evaluation for the orthopedic manifestations of the lumbar spine and the bilateral lower extremity radiculopathy is 80 percent, which is more favorable than assigning a single 60 percent rating for incapacitating episodes, which requires the back and leg symptoms to be considered as a single disability. Prior to December 29, 2010, the evidence does not reflect that the Veteran was prescribed bedrest by a physician with treatment by a physician for incapacitating episodes having a total duration of at least 6 weeks. Indeed, on the September 2008 examination, it was noted that after convalescence from his surgery in 2007, he may have missed one or two days of work because of severe back pain in which he had bedrest, but he did not seek medical care at those times. Accordingly, the preponderance of the competent and probative evidence is against a rating in excess of 40 percent for the Veteran's DDD of the lumbar spine. The Board has considered whether the Veteran's disabilities present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2015); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Peake, 22 Vet. App. 111, 118 (2008). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40 (2015); Mitchell, 25 Vet. App. 32, 37. For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement, excess fatigability and interference with weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. Thus, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's DDD of the lumbar spine, and his radiculopathy has been separately rated. The Veteran's low back and radiculopathy disabilities are manifested by pain, limitation of motion, and sensory changes. These manifestations are contemplated in the applicable rating criteria. See 38 C.F.R. § 4.71a, 4.124a, Diagnostic Codes 5243, 8520. The Board does not find that the Veteran has described other functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluation. Rather, his description of orthopedic and neurologic symptomatology is consistent with the degree of disability addressed by such evaluations. Therefore, the rating criteria are adequate to evaluate the Veteran's disabilities and referral for consideration of an extraschedular rating is not warranted. Finally, the Court has held that entitlement to total disability based on individual unemployability (TDIU) is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has been awarded a TDIU effective from the date he stopped working in December 2010. Therefore, the issue of entitlement to TDIU is not raised by the record prior to that date and no action pursuant to Rice is necessary. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2014). ORDER The claim for restoration of the 40 percent rating for DDD of the lumbar spine, effective April 1, 2009, is granted. Entitlement to a disability rating in excess of 40 percent for DDD of the lumbar spine is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs