Citation Nr: 1638160 Decision Date: 09/28/16 Archive Date: 10/07/16 DOCKET NO. 10-36 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a disability rating greater than 20 percent for degenerative arthritis of the lumbar spine with residuals from a L4-5 microdiscectomy (lumbar spine disability) (excluding the period of temporary 100 percent disability evaluation during the appeal period prior to August 1, 2008). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from January 1993 to January 1997, and from April 2004 to April 2005. This case is before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2014, the Board remanded the case for further evidentiary development, and the case is again before the Board for further appellate proceedings. Records in the Virtual VA paperless claims processing system and Veterans Benefits Management System have been reviewed. The Board notes that the Board does not have jurisdiction over the issue of entitlement to an increased rating for right lower extremity radiculopathy because the Veteran did not submit a notice of disagreement as to the March 2015 rating decision that granted entitlement to service connection and assigned a separate evaluation for the right lower extremity radiculopathy for the entire period on appeal. See March 2015 notice of determination letter (providing notice to the Veteran of his appellate rights). FINDING OF FACT During the entire appeal period, the Veteran's lumbar spine disability is manifested by pain and pain on motion, to include during flare-ups, arthritis shown by x-ray findings, forward flexion of the thoracolumbar spine limited to greater than 30 degrees but not greater than 60 degrees, and muscle spasm or guarding severe enough to result in abnormal spinal contour; but not by forward flexion limited to 30 degrees or less, ankylosis, or incapacitating episodes having a duration of at least 4 weeks but less than 6 weeks in 12 months. CONCLUSION OF LAW For the entire appeal period, the criteria for a disability rating greater than 20 percent for the Veteran's lumbar spine disability have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5003, 5010, 5237 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Compliance with Prior Remand In June 2014, the Board remanded the case and directed the AOJ to contact the Veteran to request information regarding outstanding VA treatment for the lumbar spine disability, and the AOJ did so by letter in August 2014. The Veteran did not respond by identifying or authorizing the release of any relevant outstanding private treatment providers, though he did submit copies of private records himself. No further action was required by VA. The Board also directed the AOJ to schedule the Veteran for a VA examination to determine the severity of his lumbar spine disability. The Veteran was afforded a VA examination in August 2014, and the examiner provided the requested information. The claim was readjudicated in a November 2014 supplemental statement of the case. For these reasons, the Board's prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist VA has met all the duty to notify and duty to assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2015); 38 C.F.R. §§ 3.159, 3.326 (2015). The RO provided pre-adjudication notice by letter in August 2008, in which the Veteran was notified of the evidence necessary to support the claim for an increased rating. The Veteran was also told how VA would assist him in obtaining additional relevant evidence and how VA determines the disability rating. The Veteran had been previously provided notice of how VA determines the effective date in a letter dated October 2006. VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, post-service treatment records, and lay statements have been associated with the record. Additionally, during the appeal period, the Veteran was afforded VA examinations in August 2014 and in September 2008. The examiners each conducted an examination and provided sufficient information regarding the Veteran's lumbar spine manifestations such that the Board can render an informed determination. The Board finds that the examinations in conjunction with the other evidence of record are adequate for rating purposes. Rating Principles In evaluating the severity of a certain disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Analysis The Veteran's lumbar spine disability is currently evaluated at 20 percent disabling for the entire appeal period under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010-5237. Application of this diagnostic code is proper, as this diagnostic code contemplates the Veteran's lumbar spine arthritis and symptoms, such as limitation of motion. The Board notes that the Veteran's lumbar spine disability is assigned a temporary 100 percent disability evaluation during the appeal period prior to August 1, 2008. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating. See 38 C.F.R. § 4.71a, DC 5235-5243. When rated based on incapacitating episodes, a 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 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, DC 5243. As discussed below, the Veteran has reported that during flare-ups of pain, he has to lie down and does not move unless he has to. However, there is no evidence of bed rest prescribed by a physician and treatment by a physician due to the lumbar spine disability having duration of at least 4 weeks in 12 months during the relevant period on appeal. Thus, an increased rating based on incapacitating episodes is not warranted under DC 5243 for the entire appeal period. 38 C.F.R. § 4.71a. Under the General Formula, a 20 percent disability rating is assigned 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. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1): Objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DC 5235-5243. Note (5): Unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension, and the ankylosis results in more 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, DC 5235-5243. In evaluating any musculoskeletal disability, to include on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, pain on movement, restricted or excess movement of the joint, stiffness, swelling, incoordination, instability of station, disturbance of locomotion, weakness, fatigue, and lack of endurance, to include during flare-ups and with repetitive use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995) (the Deluca factors). The Board notes that the record shows lumbar spine arthritis shown by x-ray findings. See e.g., August 2014 VA examination. Traumatic arthritis, per DC 5010, is rated under DC 5003. DC 5003 states that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, arthritis is rated as follows: 10 percent for x-ray evidence of involvement of two or more major joints or two or more minor joints groups; and 20 percent for x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The lumbar vertebrae are considered to be a group of minor joints, ratable on parity with major joints. 38 C.F.R. § 4.45. The Veteran is competent to report his symptoms, and the Board finds that these reports are credible. During the entire appeal period, the Veteran has complained of pain, to include pain on motion. See e.g., August 2014 VA examination. There is also objectively measured limitation of motion during the appeal period. See e.g., August 2014 VA examination. Therefore, evaluation of the Veteran's arthritis depends on the extent of functional impairment of the lumbar spine's motion. During the entire period on appeal, the objective evidence shows objective limitation of forward flexion of the thoracolumbar spine of at worse 70 degrees, when considering limitation due to pain. See August 2014 and September 2008 VA examinations. Muscle spasm or guarding of the lumbar spine resulting in abnormal spinal contour is also shown. See October 2012 Augusta Back record (noting lumbar curvature and scoliosis of the lumbar spine); August 2012 Augusta Back record (noting muscle spasm in lumbar spine); September 2008 VA examination (noting muscle spasm). The August 2014 VA examination notes that there is additional limitation due to the Deluca factors, including due to flare-ups of pain, weakness, fatigability, and morning stiffness, and that the Veteran declined to perform repetitive use testing on the August 2014 VA examination because he said such testing would cause too much pain. When considering additional limitation due to repetitive motion and during flare-ups, the Board finds that the Veteran's limitation of flexion more nearly approximates forward flexion greater than 30 degrees but not greater than 60 degrees. Given that measured forward flexion limited to greater than 30 degrees but not greater than 60 degrees is more nearly approximated, and muscle spasm or guarding of the thoracolumbar spine resulting in abnormal spinal contour is shown, the criteria for a 20 percent rating under the General Formula for spine disabilities are met for the entire appeal period. On review, however, the objectively measured functional impairment of the lumbar spine's motion on forward flexion, to include the impact of the DeLuca factors and during flare-ups of pain, does not nearly approximate forward flexion limited to 30 degrees or less, which is the level required for a 40 percent rating under the General Formula for spine disabilities and under DC 5237. Further, there is no lay report or medical evidence to indicate favorable or unfavorable ankylosis. The Board acknowledges that the Veteran reported to the August 2014 VA examiner that when he gets flare-ups of pain, he doesn't do anything but lay down and that he doesn't move. However, the Veteran stated that he only gets up if he has to. Thus, though the Veteran is limited from physical activity due to pain, there is no indication of ankylosis, as the Veteran is still able to get up when he has to. There is also no objective evidence of ankylosis. See August 2014 and September 2008 VA examinations (VA examiners each noted that there is no ankylosis). For these reasons, though the record shows that the Veteran's lumbar spine disability symptoms have worsened over time during the appeal period after his 2008 lumbar spine surgery, the criteria for an increased rating are not met or nearly approximated under the applicable diagnostic codes, the currently assigned 20 percent rating is confirmed, and a rating greater than 20 percent is denied for the entire period on appeal. The Board notes that no objective neurological abnormality other than the separately rated right lower extremity radiculopathy (which is not on appeal, as discussed above) is shown during the appeal period. See e.g., August 2014 VA examination (noting only the right lower extremity radiculopathy and noting no other objective abnormality associated with the lumbar spine disability); July 2012 Augusta Back record (Veteran reported right lower extremity neurological symptoms but denied any other neurological impairments, including those on the left side). Therefore, a separate rating for an objective neurological abnormality associated with the lumbar spine disability (other than the right lower extremity radiculopathy) is not warranted. See 38 C.F.R. § 4.71a, DC 5235-5243, Note (1). The Board has also considered whether a separate compensable rating for the Veteran's scar associated with the lumbar spine disability is warranted at any point during the appeal period. Under 38 C.F.R. § 4.118, to warrant a compensable rating, the scarring must be at least six square inches (39 sq. cm) for deep and nonlinear scar, 144 square inches (929 sq. cm) for nonlinear superficial scar, unstable, or painful. See 38 C.F.R. § 4.118, DC 7801-7805. Here, the Veteran's scar is noted as not being painful or unstable. July 2012 Augusta Back record (noting well-healed surgical scar); August 2014 and September 2008 VA examinations. The August 2014 VA examiner noted that the Veteran's stable well-healed linear scar is 3 cm in length. The September 2008 VA examiner noted that the Veteran's scar is 3cm x by 0.3cm. Thus, the criteria for a separate compensable disability rating for lumbar spine scar are not met or approximated for the entire appeal period, and a separate rating for the scar is not warranted. At no point during the applicable rating period have the criteria for a rating higher than 20 percent been met or approximated. The Board has considered the applicability of the benefit of the doubt doctrine. However, because the preponderance of the evidence is against findings that a rating higher than 20 percent is warranted, the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107(b). A request for a total disability rating based on individual unemployability (TDIU) due to service-connected disability, when expressly raised by a claimant or reasonably raised by the record, is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. Rice v. Shinseki, 22 Vet. App. 447 (2009) (citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009)). Here, the Board acknowledges that the record shows that the Veteran has submitted treatment records and doctor slips which note periods during the appeal during which he was given work restrictions due to his lumbar spine disability on appeal. See October 2012 doctor's note from Augusta Back (stating that Veteran is on work restriction and should be fit for duty in one month). Further, the Veteran and his representative have reported that his lumbar spine disability at least in part impacts his ability to perform physical work tasks at his job as a training instructor. See August 2014 VA examination; June 2016 Post-remand Appellant's Brief. However, the record shows that even when the Veteran was restricted from performing the physically demanding tasks of his full-time employment as an instructor for the U.S. Army, he was still employed and did desk work. See August 2014 VA examination. The record shows that the Veteran has been employed full-time for the entire relevant period on appeal. For these reasons, the Veteran is not shown to be precluded from maintaining substantially gainful employment as a result of his service-connected disability on appeal and TDIU, to include on temporary basis, has not been reasonably raised by the record and is not before the Board at this time. Extraschedular Rating While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). The Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology pertaining to his service-connected lumbar spine disability, which is manifested by pain and pain on motion, to include during flare-ups, arthritis shown by x-ray findings, limitation of range of motion, and muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Further, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Thus, the Veteran's disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are therefore adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). The Board notes that 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 Veteran's conditions fail to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362 (2014). However, in this case, there is no evidence or lay allegation of additional symptoms or disabilities that have not been attributed to a specific service-connected disability. The Veteran is currently evaluated for a lumbar spine disability, rated as 100 percent disabling prior to August 1, 2008, and 20 percent disabling from August 1, 2008; radiculopathy of the right lower extremity, rated as 20 percent disabling, and tinnitus, rated as 10 percent disabling from September 28, 2009. The Veteran has at no point during the current appeal indicated that his service-connected lumbar spine disability results in further disability when looked at in combination with any of his other service-connected disabilities. ORDER Entitlement to a disability rating greater than 20 percent for the lumbar spine disability for the entire appeal period (and excluding the period of temporary 100 percent disability evaluation during the appeal period prior to August 1, 2008) is denied. ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs