Citation Nr: 1626341 Decision Date: 06/30/16 Archive Date: 07/11/16 DOCKET NO. 12-09 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 40 percent for spondylolisthesis and degenerative disc disease of the lumbar spine. REPRESENTATION Veteran is represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in November 2014. A transcript of that hearing is of record. This matter was previously before the Board in January 2015, at which time it was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. In the January 2015 remand, the Board noted that service connection was granted for bilateral lower extremity radiculopathy in a November 2014 rating decision and advised the Veteran to file a notice of disagreement if he desired Board review of the effective dates and/or ratings assigned for lower extremity radiculopathy. As the Veteran has not appealed the effective dates or ratings assigned to his lower extremity radiculopathy, those issues are not currently before the Board. FINDING OF FACT Throughout the appeal period, the Veteran's spondylolisthesis and degenerative disc disease of the lumbar spine have been manifested by pain, weakness, and forward flexion between 30 degrees and 60 degrees, without ankylosis or incapacitating episodes. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for spondylolisthesis and degenerative disc disease 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 FINDING AND CONCLUSION Duties to Notify and Assist 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). VA must 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). The RO's September 2009 letter contained the requisite notice. Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, post-service treatment records, and VA examination reports. The Board also notes that action requested in the prior remand has been undertaken. In January 2015, the agency of original jurisdiction requested that the Veteran identify any private or VA treatment providers who treated him for a back disability and asked him to return signed authorizations for any private treatment providers, to specifically include the Lower Keys Medical Center. However, no response or authorizations were received. Thereafter, the Veteran underwent another VA examination in February 2015. 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)). The Veteran was also afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the officer who chairs a hearing to explain the issues and suggest the submission of evidence that may have been overlooked. Here, the Veterans Law Judge identified the issue to the Veteran, who testified as to his symptomatology and treatment history. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearing. The hearing focused on the elements necessary to substantiate the claim on appeal, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. 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 (2015). 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; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; 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; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10 (2015); see also 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. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (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 the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service-connected spondylolisthesis and degenerative disc disease of the lumbar spine (hereinafter referred to as the Veteran's service-connected low back disability), has been assigned a 40 percent rating pursuant to Diagnostic Code 5243, relating intervertebral disc syndrome (IVDS). IVDS may be evaluated under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, General Rating Formula, Note (6). Pursuant to the General Rating Formula, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less, or where there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A maximum 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Pursuant to the IVDS Formula, a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months. A maximum 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An "incapacitating episode" is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula, Note (1). Additionally, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). A review of the Veteran's VA treatment records throughout the appeal period reveals multiple complaints of worsening back pain with pain radiating to the lower extremities. An October 2009 VA physical therapy consultation note indicates that the Veteran reported previously undergoing physical therapy without any alleviation of pain. He stated that there were times when he was unable to work due to back pain. During a March 2010 VA examination, the Veteran reported constant lower back pain and occasional shooting pain into the posterior thigh. He also reported increased pain during flare-ups, which lasted three to seven days and resulted in restriction in daily activities. The Veteran reported being able to walk about one-quarter mile and denied the use of assistive devices. He stated that he discontinued physical therapy because it made his back pain worse. The Veteran reported working full-time as a purchasing agent for a plumbing company and stated that he lost approximately two weeks of work during the past year due to lower back pain. There was no evidence of incapacitating episodes. Other than a mildly antalgic gait, a physical examination of the spine was normal. There was no evidence of abnormal muscle tone, spasm, atrophy, ankylosis, or guarding severe enough to cause an abnormal gait or abnormal spinal contour. Range of motion testing of the thoracolumbar spine revealed flexion to 60 degrees, extension to 20 degrees, left and right lateral flexion to 15 degrees, and left and right lateral rotation to 15 degrees, with pain on active range of motion. There was no additional limitation after three repetitions. Imaging studies performed in October 2009 revealed a left subarticular disc protrusion at L1-L2 effacing the left lateral recess, possibly producing mass effect on the left L2 nerve root, multilevel disc bulges, and facet hypertrophy. A Lasegue's sign was positive on both sides. The diagnosis was IVDS of the lumbar spine resulting in moderate disability due to pain that affected the Veteran's job, activities of daily living, and mobility. The examiner indicated that the Veteran's lower back pain affected his usual occupation in the form of difficulty sitting or standing for prolonged periods of time, which required him to frequently change positions and resulted in increased absenteeism. It was noted that at the time of the examination, the Veteran worked full-time as a purchasing agent for a plumbing company. VA treatment records dated August 2014 show complaints of localized lower back pain, which intermittently radiated to the lower extremities and was not alleviated by medication or physical therapy. The Veteran also reported falling about four times since July 2014 due to gait abnormalities and leg "weakness," and on one occasion, he reportedly fell down stairs and broke his nose. He denied any loss of bowel or bladder control or saddle anesthesia. The treatment provider recommended a front wheel walker and advised the Veteran to continue home exercises and use a transcutaneous electrical nerve stimulation (TENS) unit and naproxen for pain. The Veteran reported working part-time at a job that allowed him to sit and park his car close to work. He also reported avoiding walking any distance and lifting as much as possible. A November 2014 VA treatment record indicates that the Veteran's lower back pain was still not responding to medication or physical therapy. He denied any falls since his last visit; however, he reported no relief of his back pain. He reportedly discontinued physical therapy because he was unable to function the following day due to increased pain. The Veteran stated that he returned to work full-time and noted that he used a walker, which helped with walking long distances. He denied any loss of bowel or bladder control or saddle anesthesia. A physical examination revealed tenderness to palpation at the lumbar spine and pain with flexion and extension. During a November 2014 hearing before the Board, the Veteran's representative asserted that the Veteran experienced more than six incapacitating episodes within the past 12 months. The Veteran described these episodes as falls which occurred after his legs gave out due to lower back pain and leg weakness. He testified that he experienced constant lower back pain and weakness and walked with a cane at home and used a walker outside of his home. The Veteran reported working as a purchasing agent for a plumber, which allowed him the flexibility to sit at a desk all day and stand as needed. He stated that he recently attempted to retire, but had to return to work for financial reasons. During a February 2015 VA examination, the Veteran reported lower back pain and weakness with increased pain and daily flare-ups, during which he experienced severe pain lasting approximately two hours. The examiner was unable to provide an opinion as to whether pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups without resorting to speculation, as the Veteran was not experiencing a flare-up during the examination. The Veteran stated that he regularly used a cane and occasionally used a brace. Range of motion testing revealed forward flexion to 50 degrees, extension to 20 degrees, left and right lateral flexion to 15 degrees, and left and right lateral rotation to 10 degrees, with pain on all ranges of motion. After three repetitions, the Veteran reported increased pain, fatigue, weakness, and lack of endurance; however, there was no additional limitation of motion, in terms of degrees. The examiner was unable to provide an opinion as to whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time without resorting to speculation, as the Veteran was not examined over a period of time. Muscle strength testing revealed left hip flexion and left knee extension was a four, out of five, but lower extremity muscle strength was otherwise normal. There was no evidence of ankylosis or muscle atrophy. A straight leg raising test was negative on both sides. The examiner observe objective evidence of pain with weight bearing, localized tenderness or pain on palpation at L4-L5, and guarding resulting in abnormal gait or abnormal spinal contour. Other than lower extremity radiculopathy, there was no evidence of any other neurologic abnormalities related to a low back condition, such as bowel or bladder problems. The examiner indicated that the Veteran did not experience episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The diagnoses were IVDS, degenerative disc disease, and bilateral lower extremity radiculopathy. It was noted that the Veteran's low back disability affected his ability to work in that he was limited to desk work and was unable to lift over ten pounds. As previously noted, the Veteran's service-connected low back disability has been assigned a 40 percent disability rating. Throughout the appeal period, range of motion testing revealed, at worst, flexion to 50 degrees, extension to 20 degrees, left and right lateral flexion to 15 degrees, and left and right lateral rotation to 10 degrees, with no additional limitation after three repetitions. As such, the limitation of motion caused by the Veteran's service-connected low back disability warrants a 20 percent disability rating. See 38 C.F.R. § 4.71a, General Rating Formula. Nevertheless, the Board will not disturb the already assigned 40 percent rating. In order for a higher rating to be warranted under either the General Rating Formula or the IVDS Formula, the evidence of record must demonstrate, at a minimum, unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least six weeks during the past 12 months. See 38 C.F.R. § 4.71a. Although the Veteran has asserted that he has been incapacitated by his low back disability on more than six occasions within the past year, the Veteran described these episodes as falls. The Rating Criteria defines "incapacitating episodes" as periods of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, IVDS Formula, Note (1). A review of the record reveals no evidence of incapacitating episodes requiring prescribed bed rest and treatment by a physician. Moreover, there is no evidence of ankylosis of the spine. Accordingly, a rating in excess of 40 percent is not warranted for any distinct period on appeal. See 38 C.F.R. § 4.71a, Diagnostic Codes 5243. The Board has also considered whether the Veteran has any associated objective neurologic abnormalities associated with his service-connected low back disability. As previously noted, the Veteran did not appeal the disability ratings assigned to his lower extremity radiculopathy, and therefore, those ratings are not presently before the Board. Additionally, the evidence does not show that the Veteran has any other neurologic abnormalities associated with his service-connected low back disability. Thus, a separate rating for neurologic abnormalities is not warranted. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The Board has also considered whether referral for an extraschedular rating is warranted. Extraschedular consideration requires a three-step inquiry. See 38 C.F.R. § 3.321(b)(1); see also Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the claimant's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the claimant's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. In the instant case, the Veteran's low back disability has produced symptoms of pain; weakness; decreased motion; altered gait; difficulty with prolonged sitting, standing, and walking; and falling. 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. While the Veteran's falls may not be contemplated by the assigned schedular rating based on limitation of motion, referral for extraschedular consideration is only warranted where governing norms, such as marked interference with employment or frequent periods of hospitalization, are present. The Veteran reported being hospitalized on one occasion after a fall; however, he did not respond to VA's request for records of such hospitalization. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that VA's duty to assist veterans is not always a "one-way street"). Moreover, the Board finds that one hospitalization during the appeal period is not representative of "frequent hospitalization." With respect to employment, the record shows that the Veteran's low back disability affected his ability to work in that he could not stand or walk for prolonged periods of time, had to change positions frequently, could not lift more than ten pounds, and caused increased absenteeism. Nevertheless, the record shows that throughout the appeal period, the Veteran worked full-time as a purchasing agent for a plumbing company, with the exception of a period during which he attempted to retire, but had to return to work for financial reasons. The Veteran reported that that his job allowed him to sit a desk most of the day and stand as needed. During the March 2010 VA examination, the Veteran reported losing approximately two weeks of work during the past year due to lower back pain. Although the Veteran's low back disability affected his ability to work, the Rating Schedule already contemplates some impairment in earning capacity. See 38 C.F.R. § 4.1 (2015). As the Veteran was able to maintain full-time employment, the Board finds that his low back disability did not result in marked interference with employment. Accordingly, referral for extraschedular consideration is not warranted, as the record does not show marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 116. The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Service connection is currently in effect for the low back disability discussed in this decision, as well as right and left lower extremity radiculopathy. In this case, the evidence of record, including lay statements, does not indicate any effect caused by a combination of the disability on appeal and any other service-connected disabilities that is not already specifically contemplated by the individually assigned ratings. As such, further discussion of an extraschedular rating based upon the combined effect of multiple conditions is not necessary. See Yancy v. McDonald, 27 Vet. App. 484, 495 (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 notes that a claim of entitlement to a total disability rating based on individual unemployability (TDIU) is part and parcel of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran has not asserted and the evidence does not otherwise suggest that he is unemployable due to service-connected disabilities. Accordingly, the Board finds that a TDIU claim has not been raised. See Id. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning a rating in excess of that already assigned, the doctrine is not for application. See Gilbert, 1 Vet. App. at 56. ORDER A rating in excess of 40 percent for spondylolisthesis and degenerative disc disease of the lumbar spine is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs