Citation Nr: 1622075 Decision Date: 06/02/16 Archive Date: 06/13/16 DOCKET NO. 13-00 482A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to a rating in excess of 10 percent for sacroiliac strain, to include degenerative arthritis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1990 to January 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In the September 2012 rating decision, the RO increased the Veteran's disability rating for his service-connected spine disability to 10 percent disabling, effective July 31, 2012 (date of claim). This appeal has been processed entirely electronically using the Veterans Benefits Management System (VBMS). FINDING OF FACT The Veteran's service-connected sacroiliac strain, to include degenerative arthritis is manifested by subjective complaints of pain, but objectively, the Veteran retains functional range of motion of greater than 60 degrees is flexion and combined range of motion of the thoracolumbar spine greater than 120 degrees; the disability is not manifested by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for a sacroiliac strain, to include degenerative arthritis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5237 and 5242 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA has certain duties to notify and assist a claimant. See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Here, VA's duty to notify was satisfied through an August 2012 notice letter that informed the Veteran of his duty and VA's duty for obtaining evidence and the process by which disability ratings and effective dates are assigned. For increased rating claims, the VCAA requires only generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009); Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010). VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records (STRs), VA treatment records, and the Veteran's lay statements have been obtained and associated with the claims file. The Veteran was also provided VA examinations in September 2012, May 2013, and July 2013 and August 2015 in connection with his claim. See 38 U.S.C.A. § 5103A(d) ; 38 C.F.R. § 3.159. The Board finds these examinations are adequate for the purpose of evaluating the claim as the examiners reviewed the Veteran's pertinent medical history, considered his self-reported history, and provided medical opinions sufficient to rate the disability on appeal. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 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 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 claim. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2015). Merits of the Increased Rating Claim 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 his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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 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). The Veteran contends that a higher rating is warranted for his service-connected back disability. The Veteran filed an increased rating claim in July 2012. 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 back disability has been more severe than at others, and rate it accordingly. The Veteran's service-connected sacroiliac strain, to include degenerative arthritis is currently evaluated under 38 C.F.R. § 4.71a, DC 5237. All spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine 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 (IVDS) Based on Incapacitating Episodes (DC 5243), whichever method results in the higher evaluation (if the service-connected disability involves IVDS). The General Formula provides for ratings for lumbar strain as follows: A 10 percent rating is warranted for flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankyloses of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankyloses of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2015). The Formula for Rating Intervertebral Disc Syndrome 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). Normal ranges of motion for the thoracolumbar spine are 90 degrees flexion, and 30 degrees extension, lateral flexion, and rotation. 38 C.F.R. § 4.71a, Plate V (2015). 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). 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. In September 2012 the Veteran was afforded a VA examination to evaluate his service-connected sacroiliac strain disability, to included degenerative arthritis. He reported constant stiff pain in his low back with a pain level rated at 3 out of 10. The Veteran also reported flare-ups, with sharp and burning pain rated 10 out of 10. He stated that he would usually quit working during a flare-up. The reported aggravating factors included prolonged standing, brisk walking and prolonged sitting. The Veteran indicated that massages relieve his low back pain. Upon physical examination and testing, the examiner noted localized tenderness or pain to palpation for joints/soft tissue of the thoracolumbar spine. He also noted the absence of guarding or muscle spasm of the thoracolumbar spine, described in the paraspinal muscles intrascapular area as well as the low lumbar region. Range of motion testing reflected forward flexion to 85 degrees with pain at 75 degrees, extension to 30 degrees or greater with no objective evidence of painful motion, right lateral flexion to 25 degrees with pain at 25 degrees, left lateral flexion to 30 degrees or greater with no objective evidence of pain, right lateral rotation to 30 degrees or greater with no objective evidence of pain, and left lateral rotation to 30 degrees or greater with no objective evidence of pain. Upon repetitive-use testing, there was no functional loss, impairment or additional limitation of range of motion. Muscle strength testing, reflex testing, and sensory testing results were all normal and there were no signs of muscle atrophy. Deep tendon reflexes were normal in the bilateral knees and ankles. Straight leg testing was normal in the left leg, but there was significant tightness in the right hamstring at 70 degrees. There was no radicular pain, any other signs or symptoms due to radiculopathy, any other neurologic abnormalities related to the thoracolumbar spine disability, or evidence of IVDS of the thoracolumbar spine. The examiner referred to imaging studies of the thoracolumbar spine and determined that arthritis was documented. The examiner diagnosed the Veteran with mild degenerative changes of the lumbar spine and concluded that the Veteran's service-connected thoracolumbar spine disability does not impact his ability to work. In May 2013, the Veteran underwent a VA Gulf War general examination in connection with his service-connection claim for fibromyalgia. He reported low back pain. The RO granted service connection for fibromyalgia in a May 2013 rating decision. The issue of the rating for fibromyalgia is not is appellate status at this time. In July 2013, the Veteran was afforded another VA examination to evaluate the severity of his service-connected thoracolumbar spine disability. The Veteran reported continued discomfort, pain, stiffness, spasms and degreased motion. He also reported tight hamstring muscles in his right leg with no radiating pain down the leg. He denied fatigue, numbness, paresthesis, leg or foot weakness, bladder complaints and bowel complaints. He indicated that the pain was usually localized with a pain level of 4 out of 10. Pain during flare-ups was described as 8 to 9 out of 10. He was unsure of precipitating factors, but thought they were related to sleeping in the wrong position or lifting things incorrectly. Alleviating factors reported were stretching, lying down with an ice pack and massage. The Veteran reported the use of a back brace for a few hours when pain required it. Upon physical examination and testing, the examiner noted the absence of both localized tenderness and pain to palpation for joints/soft tissue of the thoracolumbar spine, and guarding or muscle spasm. Range of motion testing reflected forward flexion to 85 degrees with no objective evidence of painful motion, extension to 30 degrees or greater with no objective evidence of painful motion, right lateral flexion to 30 degrees with no objective evidence of painful motion, left lateral flexion to 30 degrees or greater with no objective evidence of pain, right lateral rotation to 30 degrees or greater with no objective evidence of pain, and left lateral rotation to 30 degrees or greater with no objective evidence of pain. Upon repetitive-use testing, there was no additional limitation of range of motion; however, there was less movement of the thoracolumbar spine. Muscle strength testing, reflex testing, and sensory testing results were all normal and there were no signs of muscle atrophy. Deep tendon reflexes were normal in the bilateral knees and ankles. Straight leg testing was negative in both legs, but there was significant tightness in the right hamstring. There was no radicular pain, any other signs or symptoms due to radiculopathy, any other neurologic abnormalities related to the thoracolumbar spine disability, or evidence of IVDS of the thoracolumbar spine. The examiner determined that she could not resolve the issue of additional range of motion loss during a flare-up without resorting to speculation because the Veteran did not have a flare-up at the time of examination, and did not exhibit any additional loss of motion during the examination. The examiner concluded that the Veteran's service-connected thoracolumbar spine disability does not impact his ability to work. In a May 2014 VA medical addendum opinion, a VA examiner noted that there were no compression deformities present within the lumbar spine. The Veteran underwent another VA examination of the thoracolumbar spine in August 2015. The Veteran reported intermittent back pain that is aggravated with prolonged sitting and prolonged walking. The Veteran denied flare-ups and any functional loss or functional impairment of the thoracolumbar spine. Upon physical examination and testing, the examiner noted the absence of both localized tenderness and pain to palpation for joints/soft tissue of the thoracolumbar spine, and guarding or muscle spasm. All initial ranges or motion were normal with no evidence of pain. Upon repetitive-use testing, there was no additional limitation of range of motion. Muscle strength testing and reflex testing were all normal and there were no signs of muscle atrophy. Sensory testing results indicated decreased deep tendon reflex in the bilateral ankles and decreased sensation to light touch in the left lower leg and left lower ankle. Deep tendon reflexes were normal in the bilateral knees and hypoactive in the bilateral ankles. Straight leg testing was negative in the right leg and positive in the right leg. Radicular pain was noted. There was no ankyloses of the spine, other signs or symptoms due to radiculopathy, other neurologic abnormalities related to the thoracolumbar spine disability, or evidence of IVDS of the thoracolumbar spine. The examiner concluded that the Veteran's thoracolumbar spine disability impacted his ability to work because the disability resulted in difficulty with prolonged sitting. The examiner also noted that there was minimal retrolisthesis at L5-S1 and also slight straightening of the lumbar spine. There was also loss of the disc space height at L5-S1, L1-2 and to lesser and L2-3. Minimal endplate spurring was present at L2-3 and there was mild facet arthropathy at L4-5 and L5-S1. Subsequently, the RO granted service connection for radiculopathy of the bilateral lower extremities in an August 2015 rating decision. An April 2014 private treatment examination showed range of motion testing that revealed "restricted flexion (80/95) with pain, restricted extension (10/35) with pain on the left side of L5, normal left lateral flexion, and restricted right lateral flexion (20/40) with stiffness in the left lumbar spine. " Tenderness on palpation over left sacroiliac joint and moderate muscle spasm and tenderness was noted. VA outpatient treatment records reflect continuing complaints and treatment for the Veteran's thoracolumbar spine disability. However, no range of motion testing was conducted at the outpatient visits. Applying the facts in this case to the criteria set forth above, the criteria for a disability rating in excess of 10 percent 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 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. Such has not been shown in this case. Although the Veteran has started using a back brace, there have been no recommendations for physical therapy or surgical intervention. Muscle spasms and tenderness did not affect spinal contour and the Veteran maintained a normal posture and gait. Therefore, a rating in excess of 10 percent for the Veteran's service-connected thoracolumbar 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 thoracolumbar spine disability. More importantly, there is no evidence of the Veteran being diagnosed with IVDS. Specifically, the VA examiners noted that the Veteran did not have IVDS of the thoracolumbar spine. A rating in excess of 10 percent for the Veteran's service-connected thoracolumbar 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 September 2012 and July 2013 VA examiners did not mention any neurologic abnormalities or findings related to the service-connected cervical spine disability. Specifically, these examiners reported that muscle strength testing, reflex testing, and sensory testing results all showed normal results. The Board notes that the August 2015 VA examination indicates results of decreased deep tendon reflex in the bilateral ankles and decreased sensation to light touch in the left lower leg and left lower ankle. However, these conditions are adequately evaluated and rated with the Veteran's service-connected radiculopathy of the bilateral lower extremities. 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 thoracolumbar spine disability is warranted. That is, the evidence does not show the objective diagnosis of an associated neurological disability prior to August 2015. As of the August 2015 VA examination, the Veteran has been compensated by two 10 percent ratings for the diagnosed neurological disability of the lower extremities. Considering all the lay and medical evidence, the Board finds that this neurological disability was not objectively diagnosed prior to August 2015 and that is no more than mild in severity in either lower extremity. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. For a higher rating of 20 percent, the evidence would need to show moderate incomplete paralysis. The Board finds that the preponderance of the evidence weighs against such a finding, to include the August 2015 VA examination in which the examiner documented the disability as mild in severity. 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. Although the Veteran has degenerative joint disease of the lumbar spine, a rating higher than 10 percent is not warranted. Degenerative arthritis is rated under DC 5003, which instructs that evaluation shall be on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. If noncompensable limitation of motion is demonstrated, a 10 percent rating is assigned for each major joint or group of minor joints affected. In the absence of any limitation of motion, a 10 percent rating is warranted for involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted for involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. For the purpose of rating disability from arthritis, the lumbar spine is considered as one major joint. 38 C.F.R. § 4.45. As such, DC 5003 would not assist the Veteran in obtaining a higher disability rating. See 38 C.F.R. § 4.71a, DC 5003. 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). The September 2012 and July 2013 VA examiners noted that there was no functional loss and/or functional impairment of the thoracolumbar spine upon repetitive use. The August 2015 examiner noted that upon repetitive use, the Veteran had less movement than normal. Although the evidence does show that the Veteran experiences some painful motion, and less movement than normal upon repetitive use; 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. Considering the multiple VA examinations of record in total, the Board finds that VA has met its duty to assist the Veteran is obtaining evidence in support of a higher rating. Although the Veteran has at times asserted increased disability during a flare, the VA examinations provide sufficient evidence to show that the functional impact of the disability has not more nearly approximated the next level of disability at any time under appeal. In this regard, the Board has considered evidence from throughout the period on appeal, to include the August 2015 VA examination in which the examiner found there as normal range of motion with no pain and not additional loss of function after repetitive use. The Veteran has submitted no evidence showing that his thoracolumbar 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 thoracolumbar spine 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 5237, 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 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 thoracolumbar spine disability warrants a higher rating. 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 sacroiliac strain, to include degenerative arthritis, must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER An increased rating in excess of 10 percent for sacroiliac strain to include degenerative arthritis is denied. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs