Citation Nr: 1643087	
Decision Date: 11/09/16    Archive Date: 12/01/16

DOCKET NO.  09-33 398	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to a disability rating higher than 10 percent for degenerative disc disease of the lumbar spine since July 13, 2012.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel



INTRODUCTION

The Veteran served on active duty with the United States Navy from May 1988 to May 2008.

This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia. In an October 2008 rating decision, the RO granted service connection for degenerative disc disease of the lumbar spine with right radiculopathy and assigned a 0 percent, noncompensable disability rating. In a January 2013 rating decision, the RO granted a 10 percent rating, effective August 18, 2008, for degenerative disc disease of the lumbar spine, and granted separate service connection and separate ratings for right lower extremity radiculopathy and left lower extremity radiculopathy. In a December 2013 rating decision, the RO changed the effective date for the 10 percent rating for degenerative disc disease of the lumbar spine to June 1, 2008.

In a July 2014 decision, the Board granted an increased rating of 20 percent for the Veteran's degenerative disc disease of the lumbar spine effective June 1, 2008, through July 12, 2012. The Board remanded to the RO for the development of additional evidence the issue of the rating from July 13, 2012, forward. In an August 2014 rating decision, the RO continued the previously assigned 10 percent rating from July 13, 2012.

In April 2016, the Board again remanded to the RO the issue of the rating from July 13, 2012. The Board is satisfied that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998).

A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU) where there are allegations of worsening disability and related unemployability.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Here, while the Veteran has cited lost time from work, he has not alleged he is unemployable, and in fact continues to maintain full-time employment.  No inference of a claim for TDIU is therefore warranted.
FINDING OF FACT

Since July 13, 2012, degenerative disc disease of the Veteran's lumbar spine has been manifested by incapacitating episodes with a total duration of two to four weeks per year or muscle spasm that resulted in abnormal gait or abnormal spinal contour.


CONCLUSION OF LAW

From July 13, 2012, degenerative disc disease of the Veteran's lumbar spine has met the criteria for a 20 percent disability rating. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 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 claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). Under the notice requirements, VA is to notify the 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, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2015). 

The RO provided the Veteran notice in letters issued in 2008 and 2009. In those letters, the RO notified him what information was needed to substantiate claims for service connection. The letters also addressed how VA assigns disability ratings and effective dates.

The claims file contains service medical records, post-service medical records, and reports of VA medical examinations. The examination reports and other assembled records are adequate and sufficient to reach decisions on the issue on appeal. The RO substantially fulfilled the instructions in the 2014 and 2016 Board remands.

The Board finds that the appellant was notified and aware of the evidence needed to substantiate the claim, and the avenues through which he might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining evidence. The appellant actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so.

Rating Issue

The Veteran contends that from July 13, 2012, forward, his lumbar spine disability produces impairment that warrants a rating higher than 10 percent. He has noted in particular that he loses days of work during flare-ups of more severe symptoms in his low back.

VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, 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. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The United States Court of Appeals for Veterans Claims (Court) has indicated that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The RO has evaluated the Veteran's degenerative disc disease of the lumbar spine under 38 C.F.R. § 4.71a, Diagnostic Code 5243. The rating schedule provides for evaluating spine disorders, including intervertebral disc disorders, under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Rating Formula), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Code 5243.

Under the General Rating Formula, a 10 percent disability rating is assigned if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is 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 rating is assigned if forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned if for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula.

For VA rating purposes the normal ranges of motion of the thoracolumbar spine are to 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The combined range of motion is 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); 38 C.F.R. § 4.71a, Plate V. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1).

In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that for disabilities evaluated on the basis of limitation of motion, VA is to consider any additional functional impairment due to weakened movement, excess fatigability, incoordination, excess fatigability, and flare-ups.

Under the Incapacitating Episodes Rating Formula, intervertebral disc syndrome is rated based on the total duration of incapacitating episodes during the preceding twelve months. The rating is 10 percent if the total duration was at least one week but less than 2 weeks, 20 percent if it was at least 2 weeks but less than 4 weeks, 40 percent if it was at least 4 weeks but less than 6 weeks, and 60 percent if it was at least 6 weeks. 38 C.F.R. § 4.71a, DC 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. 38 C.F.R. § 4.71a, Incapacitating Episodes Rating Formula, Note (1).

From 2008 forward, the Veteran has reported that during flare-ups of severe low back pain he has periods of two to five days when he cannot work and sometimes has to stay in bed. In letters submitted in 2008, two friends each described restrictions the Veteran experienced during episodes of severe back problems, including restriction to bed and inability to work for three or four days.

On VA medical examination on July 13, 2012, the Veteran reported having chronic low back pain and flare-ups of severe pain. He stated that flare-ups occurred about monthly and lasted about three days. He indicated that during flare-ups he saw his chiropractor, remained lying down except to use the bathroom, and missed work. He stated that during those episodes his chiropractor told him to stay in bed until the symptoms eased. The examiner noted that over the preceding twelve month period the Veteran's incapacitating episodes had a total duration of at least two weeks but less than four weeks. On examination, the ranges of motion of the Veteran's thoracolumbar spine were to 90 degrees of forward flexion, with painful motion from 85 degrees, 30 degrees of extension, with painful motion at 30 degrees, 30 degrees of lateral flexion to each side, with painful motion at 30 degrees, and 30 degrees of rotation to each side, with painful motion at 30 degrees. After three repetitions the ranges of motion were the same. The examiner observed no guarding or evidence of muscle spasm.

In January 2014, the Veteran wrote that he continued to have episodes of severe back pain that debilitated him and reduced or neutralized his functioning for two to three days.

On VA examination in August 2014, the Veteran reported worsening chronic low back pain, and flare-ups of severe pain. He stated that flare-ups occurred about every other month, and lasted three to five days. He stated that flare-ups slowed his pace, and occasionally caused him to miss work. On examination, the ranges of motion of the Veteran's thoracolumbar spine were to 85 degrees of forward flexion, with painful motion from 85 degrees, 20 degrees of extension, with painful motion at 20 degrees, 20 degrees of lateral flexion to each side, with painful motion at 20 degrees, and 20 degrees of rotation to each side, with painful motion at 20 degrees. After three repetitions the ranges of motion were the same. He had thoracolumbar muscle spasm that resulted in abnormal gait or abnormal spinal contour.

At the time of the July 2012 VA examination, the Veteran's low back disability produced incapacitating episodes with a total duration of two to four weeks per year, meeting the criteria for a 20 percent rating under the Incapacitating Episodes Rating Formula. His accounts in the January 2014 statement and the August 2014 VA examination suggested that he continued to have flare-ups that reduced his functioning, but that he was only occasionally so incapacitated as to miss work. By the time of the 2014 examination, however, he had thoracolumbar muscle spasm that resulted in abnormal gait or abnormal spinal contour, and thus met the criteria for a 20 percent rating under the General Rating Formula. From July 13, 2012, forward, then, the criteria for a 20 percent rating have been met under one formula or the other. Therefore, a 20 percent rating is warranted for that period.

From July 13, 2012, the Veteran's back disability has not met or approached the criteria for a rating higher than 20 percent. He has not had incapacitating episodes with a total duration of at least four weeks over a twelve month period. Forward flexion of his thoracolumbar spine has not been limited to 30 degrees or less.

Consideration has been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321.  Extraschedular consideration involves a three step analysis.  Thun v. Peake, 22 Vet. App. 111 (2008).

First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology.  Id. At 115.  If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops.  Id.

If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization.  Id. At 116.

If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.

The schedular criteria fully account for the Veteran's complaints of periodic flare-ups with increased impairment, pain, and limited motion.  No extraschedular evaluation is warranted.

The Board also 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 individual conditions fails to capture all the service-connected disabilities experienced.  Johnson v. McDonald, 762 F.3d 1362 (2014).  Here, all service-connected symptoms and manifestations are captured in the assigned schedular evaluations; there are no unaccounted for impairments.


ORDER

From July 13, 2012, a 20 percent disability rating for degenerative disc disease of the lumbar spine is granted, subject to the law and regulations controlling the disbursement of monetary benefits.




____________________________________________
WILLIAM H. DONNELLY
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs