Citation Nr: 1639849 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 10-27 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for lumbar spine strain. 2. Entitlement to an initial rating in excess of 20 percent for exertional rhabdomyolysis. 3. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to February 13, 2013. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.M. Clark, Counsel INTRODUCTION The Veteran served on active duty from November 2005 to September 2007. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Veterans Law Judge in February 2013. A copy of the transcript is of record. This case was previously before the Board in April 2013 when the claims were remanded for further development. In a May 2015 rating decision the RO granted entitlement to TDIU, effective February 13, 2013. On appeal remains the claim for entitlement to TDIU, prior to February 13, 2013. The RO issued a supplemental statement of the case in March 2016, and the appeal is again before the Board. This appeal is comprised of documents contained in the Veterans Benefits Management System (VBMS) and the Virtual VA system. All future documents should be incorporated into the Veteran's VBMS file. The issues of entitlement to an initial rating in excess of 20 percent for exertional rhabdomyolysis and entitlement to TDIU prior to February 13, 2013 are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT For the entire period on appeal, the Veteran's lumbar spine strain has reflected painful forward flexion equivalent to greater than 60 degrees, but less than 85 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, incapacitating episodes requiring bedrest, or neurological deficits associated with the Veteran's back disability have not been demonstrated. CONCLUSION OF LAW Throughout the period on appeal, the criteria for a disability rating higher than 10 percent for lumbar spine strain are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5237 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2015). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). In evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 ("functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded"); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). In an April 2008 rating decision, the RO granted service connection for a mild lumbar spine strain, and assigned a 10 percent initial rating pursuant to Diagnostic Code 5237, effective October 1, 2007. Under the general rating formula for diseases and injuries of the spine set forth in Diagnostic Code 5237, a 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; when muscle spasm, guarding, or localized tenderness does not result in either an abnormal gait or abnormal spinal contour; or when there is a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation requires either that forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or that favorable ankylosis of the entire thoracolumbar spine is shown. 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. 38 C.F.R. § 4.71a, Note 2. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): 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. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Moreover, "chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a (2015). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months warrants the assignment of a 20 percent rating. Intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months is assigned a 40 percent rating. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note (1): For purposes of evaluations under diagnostic code 5243 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. Note (2): If intervertebral disc syndrome is present in more than one spinal segment provided that the effects in each spinal segment are clearly distinct evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2015). Following a review of all of the evidence, the Board finds that a rating in excess of 10 percent is not warranted at any time during the period on appeal. At a September 2007 VA examination no abnormal curvature was noted of her spine. She demonstrated flexion of 85 degrees with pain and stiffness starting at 80 degrees and ending at 95 degrees. Extension was noted to 30 degrees, with pain and stiffness starting at 25 degrees and ending at 35 degrees. Lateral motion of 35 degrees with pain and stiffness starting at 28 degrees and ending at 40 degrees, and rotation of 30 degrees with pain and stiffness starting at 25 degrees, ending 35 degrees was demonstrated. The VA examiner noted no evidence of spasm with palpation of the lumbar spine. The Veteran exhibited mild manifestation of pain and stiffness in her lumbar spine. Neurological testing reflected normal findings. The Veteran was once again examined in December 2009. The Veteran reported that she was unable to walk more than a few yards. An inspection of her spine revealed normal posture, head position and symmetry in appearance. The VA examiner noted normal gait. No abnormal spinal curvatures were observed. The VA examiner stated that the Veteran's muscle spasm, localized tenderness or guarding was not severe enough to be responsible for abnormal gait or abnormal spinal contour. Range of motion testing revealed flexion to 80 degrees, extension to 23 degrees, left lateral flexion to 25 degrees, right lateral flexion to 26 degrees, left lateral rotation to 24 degrees, and right lateral rotation to 25 degrees. There was objective evidence of pain on active range of motion. Following repetitive motion testing, the Veteran demonstrated 70 degrees of flexion, 21 degrees of extension, 24 degrees of left lateral flexion, 23 degrees of right lateral flexion, 23 degrees of left lateral rotation, and 22 degrees of right lateral rotation. Neurological testing was normal. The Veteran underwent an additional VA examination in June 2013. She reported chronic pain and that she was taking medication for her back. She reported that her pain is aggravated by exertion and she has spasms to her back and weekly flare-ups that can last for hours. Range of motion testing reflected 85 degrees of flexion with painful motion beginning at 10 degrees. Extension was observed to 30 degrees, with painful motion beginning at 15 degrees. Right lateral flexion was noted to be 25 degrees, with pain at 15 degrees, while left lateral flexion was to 30 degrees or more with pain at 15 degrees. Right and left lateral rotation was to 30 degrees with no painful motion. Despite some of the low range of motion findings observed when the Veteran experienced pain, following repetitive testing the Veteran was still able to demonstrate 85 degrees of forward flexion, 30 or more degrees of extension, 25 degrees of right lateral flexion, and 30 or more degrees of left lateral flexion, right lateral rotation and left lateral rotation. Although the VA examiner noted guarding and/or muscle spasm, it was noted that they did not result in abnormal gait or spinal contour. No intervertebral disc syndrome or incapacitating episodes over the past 12 months were noted. Neurological testing was normal. Based on these findings forward flexion is demonstrated to be greater than 60 degrees, even considering pain, and a combined range of motion is shown to be greater than 120 degrees. These findings are consistent with a 10 percent disability rating, not a rating in excess of 10 percent. The Board has reviewed the Veteran's treatment records, and has considered the Veteran's use of pain medications for her back. The evidence reflects range of motion findings most consistent with a 10 percent disability rating. Also, incapacitating episodes requiring bedrest warranting an increased rating or separate neurological findings have not been demonstrated. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. A part that becomes painful on use must be regarded as seriously disabled. Id.; see also DeLuca. The Veteran has complained about back pain, but even considering pain, the Veteran's forward flexion is not consistently less than 60 degrees; moreover her combined range of motion of the thoracolumbar spine is not consistently less than 120. As such, the Board concludes that the back pain is not of such severity as to merit a rating in excess of 10 percent rating even when contemplating pain, repetitive motion, and flare-ups, as these symptoms do not cause sufficient functional limitation. As such, the Board also finds that the preponderance of the evidence is against any rating higher than 10 percent for any portion of the period on appeal. Regarding ratings for associated neurologic abnormalities, the Veteran has not been diagnosed with neurological disabilities associated with her spine, nor perfected appeals with respect to neurological issues associated with her spine, during the period on appeal. Additionally, with respect to an extraschedular rating under 38 C.F.R. § 3.321, the applicable rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. The rating criteria are thus adequate to evaluate the disability, and referral for consideration of an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board further 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. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, 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. II. Duties to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). In this case, the Veteran has indicated no such records and all pertinent records have been obtained. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service treatment records, Social Security Administration (SSA) records, and the Veteran's written assertions. The Board has additionally reviewed the Veteran's Virtual VA (VVA) claims file and Veterans Benefits Management System (VBMS) file. Next, the Veteran was afforded examinations for her back in September 2007, December 2009, and June 2013. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's back since the most recent VA examination. Moreover, even in light of the recent case of Correia v. McDonald, 28 Vet. App. 158 (2016), the Board finds further examination is not warranted. The Board finds the examinations together to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provide the information necessary to evaluate her disability under the applicable rating criteria. The Board concludes that all the available records and medical evidence have been obtained in order to make adequate determinations as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER An initial rating in excess of 10 percent for lumbar spine strain is denied. REMAND Unfortunately, another remand is required in this case with respect to the Veteran's increased rating claim for exertional rhabdomyolysis. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration. The Veteran initially underwent VA examinations for her exertional rhabdomyolysis in September 2007 and December 2009. At the December 2009 VA examination, the VA examiner recommended that the Veteran be evaluated by a rheumatologist. The Board remanded the Veteran's claim in April 2013 so that she could be provided an additional VA examination. The June 2013 VA examiner opined that the Veteran's exertional rhabdomyolysis had resolved and that the Disability Benefits Questionnaire (DBQ) for fibromyalgia that was requested would not be filled out because he found that the Veteran did not have fibromyalgia. The Board notes that the Veteran's service-connected exertional rhabdomyolysis has been rated by analogy to fibromyalgia, the Board acknowledges that the Veteran is not diagnosed with fibromyalgia. Contrary to the June 2013 VA examiner's findings, recent treatment records reflect that the Veteran continues to suffer from exertional rhabdomyolysis and has been recommended for follow-up to the Mayo Clinic. See September 2015 VA treatment record. The Board finds that an additional VA examination is necessary for the Board to adequately rate the Veteran's service-connected disability. As the Veteran's claim for an increased rating for exertional rhabdomyolysis is being remanded for an additional VA examination, and the Veteran asserts that this disability has affected her employability, her claim for TDIU is inextricably intertwined with her increased rating claim. Therefore, the Board will not issue a decision on his TDIU claim at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are 'inextricably intertwined' when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, who treated the Veteran for her exertional rhabdomyolysis. After securing any necessary authorization from her, obtain all identified treatment records. If possible, the Veteran is asked to simply submit any new pertinent evidence (including Mayo Clinic records and VA medical records) herself to expedite the case 2. Schedule the Veteran for an examination to determine the current nature and extent of her exertional rhabdomyolysis. The claims folder should be made available to the examiner in conjunction with the examination. Any testing deemed necessary should be performed. If Disability Benefits Questionnaires (DBQs) are utilized, the examiner should be provided with the DBQs for both the muscle and fibromyalgia examinations. Both must be completed. The examiner is asked to additionally address the following question: Prior to February 13, 2013, was the Veteran at least as likely as not (50% or greater chance) unemployable solely due to her service-connected disabilities, standing alone. 3. Upon completion of the above, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his attorney should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs