Citation Nr: 1625747 Decision Date: 06/27/16 Archive Date: 07/11/16 DOCKET NO. 11-07 330 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an initial evaluation for mechanical low back strain, degenerative disc disease (DDD) in excess of 10 percent prior to November 11, 2009, and in excess of 20 percent thereafter. REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran served honorably in the United States Army from October 1985 to November 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which granted service connection for mechanical low back strain, DDD, and assigned an initial rating of 10 percent, effective March 5, 2004, and a rating of 20 percent disabling, effective November 11, 2009. In December 2013, this matter was remanded for further evidentiary development. As will be discussed in greater detail below, substantial compliance with the Board's remand directives has been achieved. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's low back disability is manifested by flare-ups that cause symptoms that approximate limitation of forward flexion of the thoracolumbar spine to 30 degrees; neither ankylosis nor incapacitating episodes have been shown. CONCLUSION OF LAW The criteria for a 40 percent disability rating for mechanical low back strain, DDD, but no higher, have been met from March 5, 2004. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237-5243 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits pursuant to 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In any event, a March 2004 notice advised the Veteran of the evidentiary requirements for his initial service connection claim, and of the division of responsibility between the Veteran and VA for obtaining evidence. A January 2012 notice informed the Veteran of the process by which disability ratings and effective dates are assigned. Therefore, the Board finds that VA's duty to notify has been satisfied. 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 (2015). Here, service treatment records are associated with claims file, and all other available post-service treatment records and reports identified by the Veteran have also been obtained. The Veteran has been afforded multiple VA examinations during the period on appeal. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). As will be discussed in greater detail below, the Board is awarding an initial 40 percent rating for the Veteran's low back disability. While the precise level of additional limitation of motion during flare-ups of the Veteran's low back disability has not been ascertained, such is immaterial. As a schedular rating higher than 40 percent would require ankylosis, he is in receipt of the highest possible schedular rating for limitation of motion. As will be discussed in greater detail below, the regulatory provisions pertaining to functional loss are not for application when a veteran is receiving the maximum schedular rating based on limitation of motion. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). For those reasons, the Board finds the VA examinations of record adequate for determining the issue on appeal. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Moreover, while the December 2013 remand directed that a VA examination be conducted during a flare-up, the fact that the February 2014 VA examination was not conducted during a flare-up is immaterial as the Board is awarding an initial 40 percent rating (the maximum schedular evaluation based on limitation of motion) rendering the provisions regarding flare-ups and functional loss inapplicable. Spencer, 13 Vet. App. at 382; Johnston, 10 Vet. App. at 85. As such, substantial compliance with the Board's past remand directives has been achieved. See Stegall, 11 Vet. App. at 271. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible, and no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Merits Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, an appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, 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). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 it 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 seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). 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). 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 (38 C.F.R. § 4.40), 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 (38 C.F.R. § 4.45). Id. 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. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran's mechanical low back strain, DDD, is rated under 38 C.F.R. § 4.71a, DCs 5237-5243. All spine disabilities are rated under the general rating formula for diseases and injuries of the spine, which provides the following ratings: 1) 10 percent-Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, 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; 2) 20 percent-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, 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) 30 percent- Favorable ankylosis of the entire cervical spine; 4) 40 percent-Forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; 5) 50 percent-Unfavorable ankylosis of the entire thoracolumbar spine; and 6) 100 percent-Unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) 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 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 of the thoracolumbar spine is 240 degrees. 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. In addition, intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) may be evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 10 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent disability rating is awarded for disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. 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 evaluation is in order. Finally, a maximum schedular rating of 60 percent is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Turning to the evidence of record, in June 2005, the Veteran was afforded a VA examination. He reported daily pain. The Veteran was able to flex to 95 degrees, posteriorly extend to 30 degrees, and laterally rotate to 30 degrees in all directions. Ankle jerk was present and pulses and sensation were intact in both lower extremities. The Veteran displayed pain at 50 degrees on forward flexion. Mild pain was noted, but there was no weakness, fatigability, or incoordination. The Veteran noted being employed and stated that his low back disability did not interfere with his work. Repetitive use testing revealed no further limitation of motion. The Veteran reported flare-ups that cause difficulty lifting and carrying things. The examiner stated that he was unable to speculate as to any additional limitation of motion caused during flare-ups. There were no neurological findings on examination. The Veteran was afforded a VA examination in November 2009. The Veteran reported daily back pain and stiffness. There was no ankylosis shown. The Veteran displayed forward flexion to 60 degrees, posterior extension to 15 degrees, and lateral flexion and rotation to 20 degrees with mild difficulty and pain. After repetitive-use testing, the Veteran displayed forward flexion to 50 degrees, with pain beginning at 30 degrees. The examiner noted pain with repetitive use. The examiner stated that he could not determine additional limitation of motion following repetitive use without resorting to speculation. The Veteran reported being employed full-time as a patient advocate and missing no time from work in the past year. The examiner stated that there were no significant effects from the back disability on the Veteran's usual occupation. The Veteran was afforded a VA examination in February 2012. There, the Veteran reported monthly episodes of back pain. Flare-ups lasting one to three weeks with activity and twisting were noted. Flexion to 60 degrees was shown, with pain beginning at 50 degrees. Extension was to 20 degrees, where pain began. Right and left lateral extension were to 20 degrees, where pain began. Right and left lateral rotation were to 25 degrees, where pain began. Repetitive use testing revealed no further limitation of motion. Pain on movement was noted. Muscle strength was normal. Reflex and sensory examinations were normal. There was no evidence of radiculopathy or any other neurologic abnormalities. There was no evidence of IVDS. The examiner stated that the Veteran's low back disability does not impact his ability to work. The Veteran was afforded a VA examination in February 2014. There, the Veteran reported flare-ups when moving in an awkward direction or bending over. The examiner was unable to speculate as to any further limitation of motion caused during flare-ups. Flexion was to 60 degrees, where pain began. Extension was to 20 degrees, where pain began. Right and left lateral extension were to 20 degrees, where pain began. Right and left lateral flexion were to 20 and 25 degrees respectively, where pain began. Right and left lateral rotation were to 30 degrees or greater with no evidence of painful motion. Repetitive-use testing did not reveal any further limitation of motion. There was no evidence of radiculopathy or any other neurological impairment. There was no evidence of IVDS. The examiner stated that the Veteran's low back disability does not impact his ability to work. In a May 2014 addendum opinion, the examiner reiterated that the Veteran does not experience IVDS. Various VA and private treatment records are associated with the claims file. No treatment record shows that the Veteran experiences ankylosis. Further, the Veteran has not asserted that he experiences ankylosis. The Board concludes that an initial 40 percent rating is warranted from the effective date of the grant of service connection, March 5, 2004. Although flexion of the thoracolumbar spine has not been limited to 30 degrees on examination, the Board has considered 38 C.F.R. §§ 4.40 and 4.45 as interpreted in DeLuca, 8 Vet. App. at 204-7. To that end, the Veteran has complained of flare-ups throughout the appeal period. He has consistently explained that flare-ups result in pain and stiffness. Additionally, no VA examiner has discussed additional loss of range of motion that results during a flare-up. Nonetheless, the Board finds it reasonable to conclude that flare-ups cause disabling manifestations that equate to limited flexion of the thoracolumbar spine to 30 degrees, the criteria for a 40 percent rating under Diagnostic Code 5237, and the highest rating under that diagnostic code for limitation of motion of the lumbar spine. Indeed, the Veteran has consistently displayed reduced flexion, usually to about 50 or 60 degrees. Further, at his June 2005 VA examination, the Veteran displayed pain at 50 degrees on flexion. Thus, during periods of normalcy, the Veteran experiences flexion limited to 50 degrees or even pain at 50 degrees on flexion. Given the Veteran's competent assertions that flare-ups cause heightened problems, and that the Veteran is only able to flex his thoracolumbar spine to about 50 degrees when it is at its best, the Board finds it reasonable to conclude that flare-ups cause the Veteran's thoracolumbar spine flexion to be tantamount to limitation to 30 degrees, especially given his competent and credible testimony concerning the problems he experiences during flare-ups. As 40 percent is the highest schedular rating for limitation of motion, the Board does not have to consider whether he is entitled to a higher disability rating because of functional loss under §§ 4.40 and 4.45. Spencer, 13 Vet. App. at 382; Johnston, 10 Vet. App. at 85. Moreover, in Johnston, the Court indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. See id. at 84-85 (although the Secretary suggested remand because of the Board's failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). A rating in excess of 40 percent is not warranted. A schedular rating in excess of 40 percent requires ankylosis or incapacitating episodes, which have not been shown. Likewise a separate rating for any neurological impairment is not warranted as there is no evidence that the Veteran experiences any neurological impairment as a result of his service-connected lumbar strain. Finally, a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes as there is no evidence that the Veteran experiences IVDS, let alone incapacitating episodes of IVDS having a total duration of at least 6 weeks during the past 12 months. Thus, a rating in excess of 40 percent is not warranted. The record does not establish that the rating criteria are inadequate for rating the Veteran's low back disability. Specifically, his symptoms of pain and limitation of motion of the back are all contemplated by the appropriate rating criteria as set forth above. Significantly, 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; Mitchell, 25 Vet. App. at 37. For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. Moreover, the general rating formula for diseases and injuries of the spine indicates that its criteria apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. In sum, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss, and the Veteran has not demonstrated any symptomatology that falls outside the scope of the applicable criteria. Thus, referral for consideration of an extraschedular evaluation is not warranted. 38 C.F.R. § 3.321(b)(1). In Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), the Federal Circuit held that "[t]he plain language of § 3.321(b)(1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities." Here, however, the issue has not been argued by the Veteran or reasonably raised by the evidence of record. The Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016) ("the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities"). The Board will therefore not address the issue further. Finally, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, however, the Veteran has reported working full-time as a patient advocate and he also stated that he has not missed any time from work due to his service-connected low back disability. Moreover, in the May 2014 addendum opinion, the VA examiner stated that the Veteran reported that he has never missed work due to his low back disability. Thus, the issue of entitlement a TDIU has not been reasonably raised by the claimant or the record, and it shall not be further addressed. ORDER An initial rating of 40 percent, but no higher, for mechanical low back strain, DDD, from March 5, 2004, is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ Jonathan Hager Veterans Law `Judge, Board of Veterans' Appeals Department of Veterans Affairs