Citation Nr: 1638242	
Decision Date: 09/28/16    Archive Date: 10/07/16

DOCKET NO.  11-12 183	)	DATE
	)
	)

On appeal from the
 Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUE

Entitlement to an initial rating in excess of 40 percent for service-connected open reduction internal fixation, lumbar spine.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. G. Mazzucchelli, Counsel

INTRODUCTION

The Veteran served on active duty from May 1976 to August 1992.

This matter comes to the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico that, in part, granted service connection for open reduction internal fixation, lumbar spine (hereinafter "back disability") and assigned an initial 20 percent disability rating which the Veteran appealed. 

Following the submission of additional evidence, in June 2012, the RO increased the rating to 40 percent effective June 24, 2011.

In June 2014, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing.  A transcript of the proceeding is associated with the electronic claims file. 

In September 2014, the Board denied entitlement to a rating in excess of 20 percent prior to June 24, 2011 and remanded the issue of entitlement to a rating in excess of 40 percent on and after June 24, 2011 for further development.  The Veteran subsequently appealed the denial of an increased initial rating to the United States Court of Appeals for Veterans Claims (Court).  In an April 2015 order, the Court vacated the Board's decision and remanded the claim for further development pursuant to a Joint Motion for Partial Remand (Joint Motion) filed by representatives of the Veteran and VA.

In May 2015, the Board remanded the claim for further development.  

In a May 2016 rating decision, the RO granted a 40 percent initial rating from March 13, 2009, the effective date of the service connection award.  The issue of entitlement to an initial rating in excess of 40 percent for the entire appeals period remains before the Board.



FINDING OF FACT

During the appeal period, the Veteran's service-connected lumbar spine disability has been manifested by pain with limited motion.  The thoracolumbar spine was not productive of any ankylosis; or incapacitating episodes of intervertebral disc syndrome having a total duration of at least six weeks during the past 12 months; or, other associated objective neurologic abnormalities other than neuropathy of the lower extremities.


CONCLUSION OF LAW

The criteria for a disability rating in excess of 40 percent for service-connected open reduction internal fixation, lumbar spine, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Notice and Assistance

VA has a duty to provide notice of the information and evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015).  In this case, the Veteran was provided with complete notice in April 2009 prior to the August 2009 rating decision in which service connection was granted.  The March 2011 statement of the case provided the Veteran with the relevant rating criteria for spine disabilities, as listed at various diagnostic codes.  The claimant was informed of the evidence needed to achieve a higher schedular rating.  

VA also has a duty to provide assistance to substantiate a claim.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c).  The record also reflects that VA has made reasonable efforts to obtain all relevant records pertinent to the matter on appeal, including the Veteran's VA and private treatment records.  The Veteran underwent VA examinations in August 2009, June 2012, and February 2016, and an addendum opinion from the August 2009 examiner was obtained in July 2015.  Taken together, the examination reports provide the medical information needed to address the rating criteria relevant to the appeal.  Thus, VA's duty to assist has been met.  

II.  Initial Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. § 4.7. 

Where a Veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . ."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found.  Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the 'present level' of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the rating claim has been pending).

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (hereinafter: General Rating Formula) for Diagnostic Codes (DCs) 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (hereinafter: IVDS Formula).  With respect to the thoracolumbar spine, under the General Rating Formula, 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, the current 40 percent rating contemplates that forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine.

Under the IVDS Formula, a 40 percent rating contemplates incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  A 60 percent rating contemplates incapacitating episodes having a total duration of at least six weeks during the past 12 months.  38 C.F.R. § 4.71a, DC 5243, Note (1).  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.  Id.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees.  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.  38 C.F.R. § 4.71a, General Rating Formula, Note (2); see also 38 C.F.R. § 4.71a, Plate V (2015).

Unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  See 38 C.F.R. § 4.71a, General Rating Formula, Note (5) (2015). 

Associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code.  See 38 C.F.R. § 4.71a , General Rating Formula, Note (1) (2015). 

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. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. at 202 (1995).  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. § 4.40.  Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities.  See 38 C.F.R. § 4.45.  Determination of whether the application of sections 4.40 and 4.45 entitles the Veteran to an increased rating for his lumbar spine disability requires factual findings as to the extent to which the Veteran's pain and weakness cause additional disability beyond that reflected in the measured limitation of motion.  DeLuca, 8 Vet. App. at 202.  A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran.  38 C.F.R. § 4.40; see also Johnston v. Brown, 10 Vet. App. 80, 85 (1997).

The record reflects chronic back pain and that the Veteran underwent spinal surgery in October 2008 that did not greatly improve his pain.  

On VA examination in August 2009, the Veteran indicated he had throbbing pain his back and could only walk 1/4 mile at a time; his gait was noted to be swaying side to side.  Spasms, atrophy, guarding, weakness and tenderness were not noted and spinal ankylosis was not found.  Moderate weekly flare-ups were noted that made it difficult to walk.  Upon range of motion testing, forward flexion was found to be to 40 degrees, extension to five degrees, right lateral and left lateral flexion to 20 degrees, right lateral and left lateral rotation were to 20 degrees.  The examiner noted objective pain on motion and after repetitive use.  However, the examiner indicated there was no additional limitation after three repetitions of range of motion testing.  The examiner diagnosed open reduction internal fixation, lumbar spine with rods, pins, and spacer L4-5 with continuing residual bilateral pain and neuropathy.  

The Board notes that the Veteran is compensated for bilateral neuropathy pursuant to Diagnostic Code 8520.

Treatment records between 2008 and 2011 show continuing back pain.  In a January 2010 treatment record, the Veteran indicated he was still working, but it was very painful for him and he had a "very bad back with failed back surgery."

A VA examination in June 2012 did not provide any information regarding whether ankylosis was present.  On that examination, the Veteran related that his back condition was becoming progressively worse and that he had decreased mobility and problems with prolonged sitting, bending and standing.  The Veteran's range of motion was noted to be extremely limited with flexion to five degrees, extension to zero degrees, left lateral flexion to five degrees, right lateral flexion to zero degrees, left lateral rotation to five degrees and right lateral rotation to zero degrees with painful motion.  The examiner stated that there was no intervertebral disc syndrome and no episodes requiring bedrest.  

In the Joint Motion, the parties agreed that the August 2009 VA examination report was inadequate in light of Mitchell v. Shinseki, 25 Vet. App. 32 (2011) and DeLuca v. Brown, 8 Vet. App. 202 (1995) that address functional loss based on pain on motion.  The parties noted that although the examiner stated that there was no additional limitation of motion after three repetitions, he did not indicate "whether there is functional loss upon the pain in motion in any regard, and does not say where in the range of flexion the pain begins."  The parties agreed that if the examiner had noted where pain began and that such pain caused "functional impact", the Veteran could have been entitled to a higher rating.

Pursuant to the Board's remand, in July 2015 the August 2009 VA examiner prepared an addendum examination report.  He stated that:

The 2009 exam was reviewed.  The Veteran had significant pain that limited the range of motion.  There was no further limitation with repetition.  The examiner did not passively force the movements because the Veteran had severe pain.  Pain was the primary limiting factor.  The Veteran would have further limitation of motion during a flare-up.  The limitation would probably have been similar to the extreme limitation reported in the [2012] C&P exam which was most likely during a flare-up (FF 5; Ext 0; R/L lat 5/5; R/L rot 5/5).  He would have problems with prolonged sitting, standing, walking, bending, lifting and carrying during this flare-up.

A VA examination in February 2016 noted that the Veteran reported muscle spasms in his low back and in both legs.  He reported sharp pain in the low back going into his legs.  Examination showed no ankylosis of the spine and no radiculopathy or other neurological abnormalities.  The examiner stated that there was no intervertebral disc syndrome and no episodes requiring bedrest.  The examiner noted that the Veteran used a cane and a brace for his back symptoms, and that the Veteran's back condition caused a moderate impact on his ability to work in a physical job, and a mild to moderate impact on his ability to work in a sedentary job.  

Rating under the General Formula

During the appeal period since the date of claim in March 2009, the Veteran's lumbar spine disorder is assigned a 40 percent disability rating.  A higher rating based on limitation of motion requires either that there is unfavorable ankylosis of the entire thoracolumbar spine, to warrant a 50 percent rating; or that there is unfavorable ankylosis of the entire spine, to warrant a 100 percent rating.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243.  

None of the medical evidence of record shows such findings consistent with either of these criteria.  At no time has the Veteran's lumbosacral spine disability been found to be ankylosed.  Although there was objective evidence of pain, following repetitive motion there were no additional limitations in range of motion or otherwise.  A higher rating is not warranted at any time during the appeal period on the basis of limitation of motion of the lumbar spine as the evidence does not show unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine, even with consideration of factors discussed in DeLuca.  Moreover, the Board finds that additional testing under 38 C.F.R. § 4.59 is not necessary as the VA examinations of record provide sufficient evidence for deciding the claim and the issue is not raised that other type of testing would show ankylosis.  Furthermore, the 40 percent rating contemplates the Veteran's statements regarding the symptomatology as the lay evidence has not shown the possibility of ankylosis.

Rating based on Incapacitating Episodes

As reflected in each of the VA examinations, the evidence does not show that within a prior 12-month period during any part of the appeal period, there have been incapacitating episodes of acute signs and symptoms due to IVDS associated with the lumbar spine disability that required bed rest prescribed by a physician having a total duration of at least six weeks so as to warrant a rating in excess of 40 percent.  During the June 2012 and February 2016 VA examinations the examiners recorded that the Veteran had not had any incapacitating episodes over the previous 12 months due to IVDS.  

Thus, as the evidence does not show there have been incapacitating episodes of acute signs and symptoms due to IVDS associated with the lumbosacral spine disability that required bed rest prescribed by a physician having a total duration of at least six weeks within any prior 12-month period, a rating higher than 40 percent is not warranted during the appeal period on the basis of any such incapacitating episodes.  See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 


Other Neurologic Abnormalities

As reflected in the reports of the VA spine examinations and other evidence during the appeal period, other than the peripheral radiculopathy of the left and right lower extremities, for which the Veteran is separately compensated, the evidence does not show any objective neurologic abnormalities associated with the Veteran's low back disability.  The Veteran has not reported and there is no evidence showing that he has had any bowel or bladder or other pertinent conditions referable to neurologic abnormalities associated with the Veteran's lumbosacral spine disability.  The evidence of record does not show that the Veteran has any other neurologic abnormalities associated with radiculopathy of the service-connected lumbosacral spine disability.  

The preponderance of the evidence is against the grant of any higher or separate rating.  As such, there is no doubt to be resolved, and higher or additional separate schedular ratings are not warranted for the service-connected open reduction internal fixation, lumbar spine.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

III. Extraschedular Considerations

The Board has considered the provisions of 38 C.F.R. § 3.321 (b)(1) and whether the record shows that the Veteran's back disability is so exceptional so as to warrant the assignment of a higher rating on an extraschedular basis.  See 38 C.F.R. § 3.321 (b)(1) (2012).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Thun v. Peake, 22 Vet. App. 111 (2008).  In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required.  Id., see also VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321 (b)(1)) as "governing norms"(which include marked interference with employment and frequent periods of hospitalization). 

Addressing the first step in the analysis, the Board does not find that the evidence indicates that the Veteran has such an exceptional disability picture that the available schedular ratings for his service-connected disability are inadequate.  The higher ratings available relating to the Veteran's back disability contemplate more serious symptoms, as discussed above.  The evidence of record does not indicate such severe manifestations at any time during the appeals period.  As such, it cannot be said that the available schedular evaluations are inadequate or that they do not contemplate the claimant's level of disability.  38 C.F.R. § 3.321 (b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that an increased rating claim encompasses a claim for a total disability rating based on individual unemployability (TDIU), where raised by the record.  In this case, the Veteran was granted TDIU in a May 2016 rating decision, effective January 1, 2016.  In Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011), the Court distinguished the instant case from Rice and recognized VA can specifically separate the adjudication of the schedular disability rating from the adjudication of entitlement to TDIU.  The Court in Locklear held that "[b]ifurcation of a claim generally is within the Secretary's discretion."  Id.  Here, the record reflects that the Veteran did not file a Notice of Disagreement with respect to the effective date of the grant of TDIU.  Given the foregoing, the Board concludes that the TDIU rating claim was separately adjudicated and has not been perfected for appellate review.  Accordingly, the Board does not have jurisdiction over the claim and need not refer or remand the matter.



ORDER

An initial rating in excess of 40 percent for service-connected open reduction internal fixation, lumbar spine is denied.



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs