Citation Nr: 1644073 Decision Date: 11/21/16 Archive Date: 12/01/16 DOCKET NO. 10-26 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent prior to December 10, 2010, for lumbar spine degenerative joint disease, facet joint arthritis, and spondylosis. 2. Entitlement to a rating in excess of 40 percent on and after December 10, 2010, for lumbar spine degenerative joint disease, facet joint arthritis, and spondylosis. 3. Entitlement to an initial rating in excess of 10 percent for right hip degenerative arthritis and acetabular dysplasia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Georgiev, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In November 2012, the Veteran testified at a hearing with the undersigned. A transcript of this hearing has been associated with the claims file. This matter was remanded in August 2014. The case has now been returned to the Board for further appellate action. FINDINGS OF FACT 1. The service-connected low back disability prior to December 10, 2010 is appropriately contemplated as forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. 2. The service-connected low back disability after December 10, 2010 is appropriately contemplated as forward flexion of the thoracolumbar spine 30 degrees or less. 3. The service-connected right hip disability is appropriately contemplated as painful motion. CONCLUSIONS OF LAW 1. Prior to December 10, 2010, the criteria for no greater than a 20 percent rating for the service-connected low back disability have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. 2. After December 10, 2010, the criteria for no greater than a 40 percent rating for the service-connected low back disability have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. 3. The criteria for no greater than a 10 percent rating for the service-connected right hip disability have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5250-5255, 5003. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) January and September 2009 letters provided proper notice with regard to the increased ratings claims. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the Veteran's claim file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The United States Court of Appeals for Veterans Claims (Court) has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2014). In this case, VA examinations were conducted in May 2009, November 2009, December 2010, and October 2014. The Board finds the examination reports, when considered together, to be thorough and complete and sufficient upon which to base a decision with regard to this claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). These examinations, along with the remaining evidence of record, contain sufficient findings to rate the Veteran's service-connected disability under the appropriate diagnostic criteria. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Increased Rating Legal Criteria Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2015). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2015). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath, 1 Vet. App. at 589. The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Low Back Disability The Veteran seeks an initial rating in excess of 20 percent prior to December 10, 2010, and 40 percent thereafter for his low back disability. The Veteran's lumbar spine disability has been evaluated under the general rating formula for disease and injuries of the spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. 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 is rated as follows: Unfavorable ankylosis of the entire spine (100 percent); Unfavorable ankylosis of the entire thoracolumbar (50 percent); Unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine (40 percent); Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine (30 percent); Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 (20 percent); Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height (10 percent) 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 normal combined range of motion for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2015). Intervertebral disc syndrome (IVDS) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. There is no indication that the Veteran suffers, or has suffered for the pendency of this appeal, from incapacitating episodes as due to his low back condition. As such, this criterion does not apply. In determining the degree of limitation of motion for musculoskeletal disabilities, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Prior to December 10, 2010, there is no indication that a rating higher than 20 percent is warranted for low back disability. The Veteran appeared for a VA examination in April 2009. X rays were completed in conjunction with the examination. The examiner diagnosed for the lumbar spine degenerative arthritis, spondylosis and facet joint arthritis. In regard to the low back, the Veteran reported pain, stiffness, and numbness. He reported difficulty with prolonged walking and standing, and exhibited a limp. In regard to the spine, there was tenderness noted with palpation of the lumbar spinous processes. Flexion was 45 degrees, extension was 20 degrees, and lateral flexion and rotation was 20 degrees. After repetitive use, there was additional pain and lack of endurance. There was no indication of ankylosis or lumbar intervertebral disc syndrome. The Veteran appeared for a VA examination in November 2009. The Veteran reported difficulty with prolonged standing, walking and sitting. He reported spinal stiffness, decreased motion, paresthesia and numbness. Spinal flexion was 45 degrees; extension, lateral flexion, and rotation were 15 degrees. There was no change with repetitive motion, although there was additional pain and lack of endurance. Likely impact of the sciatic nerve was noted after neurological examination. There was "moderate" impact noted on the Veteran's occupation and daily activity. There is no indication of forward flexion of the thoracolumbar spine 30 degrees or less or ankylosis of the spine, as would warrant a rating higher than 20 percent. After December 10, 2010, there is no indication that a rating higher than 40 percent is warranted for low back disability. The Veteran appeared for a VA examination in December 2010. The Veteran reported constant flare-ups of pain and difficulty walking, sitting and standing. In regard to his spinal condition, the Veteran reported stiffness, fatigue, decreased motion, paresthesia and numbness. He reported flare-ups of pain, weakness, incoordination, and limitation of motion. The Veteran used a cane as an assistive device in part due to his right hip and back. In regard to the spine, tenderness was noted. Flexion was 45 degrees, 30 degrees at pain, extension was 10 degrees, 5 degrees at pain, and lateral flexion and rotation were 15 degrees. There was no additional limitation after repetitive use. Likely impact of the sciatic nerve was noted after neurological examination. The Veteran's treating chiropractor submitted a report dated November 2012, in which he reported the Veteran's current symptoms to include constant low back pain and radiating right buttocks/ lower extremity, and right hip joint pain. The Veteran struggles in part with household tasks, prolonged sitting, walking over a quarter mile, and limping due to left knee condition. Dorsolumbar flexion was 40 degrees, extension was 0 degrees. Moderate lumbosacral pain/spasm was produced on flexion, extension, and bilateral lateral flexion. The Veteran's treating chiropractor submitted a report dated October 2014, in which he reported the Veteran's current symptoms to include constant low back pain and radiating right buttocks/ lower extremity, and right hip joint pain. The Veteran struggles in part with household tasks, prolonged sitting, walking over a quarter mile, and limping. The Veteran appeared for a VA examination in October 2014. X rays were completed in conjunction with the examination. The Veteran reported low back flare ups and limited functionality with continuous/ frequent activities requiring running, sitting, standing, bending, squatting, stooping and hiking. Forward flexion of the low back was 70 degrees and extension was 20 degrees. After repetitive use testing, there was no range of motion change. There was pain when the joint is used in weight bearing and non-weight bearing, and moderate paravertebral muscular tenderness consistent with degenerative disc disease. There was muscle spasm and guarding of the low back and spinal contour. There is additional 5 degree loss of forward flexion and extension when low back is used repeatedly over time. There was no ankylosis. Mild radiculopathy involving the sciatic nerve was noted. Neither intervertebral disc syndrome nor incapacitating episodes so associated were found. The examiner stated that the Veteran can perform light physical and sedentary tasks due to his low back disability. There is no indication of ankylosis of the spine, as would warrant a rating higher than 40 percent. The Board accepts that the Veteran reports pain in his lower back. See DeLuca. The Board also finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion or the functional equivalent of limitation of flexion required to warrant the next higher evaluation pendency of the appeal. As such, the Board finds that the currently assigned evaluation is appropriate for the Veteran's low back disability. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. The Board notes that the Veteran reported numbness and other symptoms of nerve damage in describing his low back condition. The Veteran is service connected for bilateral lower extremity sensory deprivation, associated with his low spine disability, at a rating of 10 percent for each extremity. 38 C.F.R. § 4.124a, DC 8520. As such, the Board does not consider paralysis of the sciatic nerve while rating the Veteran's low back condition, as it would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. Right Hip Disability The Veteran seeks an initial rating in excess of 10 percent for his right hip disability. Under Diagnostic Code 5251, a 10 percent evaluation represents the maximum schedular criteria for limitation of extension of the thigh. Limitation of flexion of the hip is rated as follows under Diagnostic Code 5252: Flexion limited to 10 degrees (40 percent); Flexion limited to 20 degrees (30 percent); Flexion limited to 30 degrees (20 percent); Flexion limited to 45 degrees (10 percent). Under Diagnostic Code 5253, a 10 percent disability evaluation is contemplated for limitation of rotation of the thigh where the affected leg cannot toe out more than 15 degrees. A 10 percent disability evaluation is also assigned when there is limitation of adduction and the legs cannot be crossed. A 20 percent disability evaluation is warranted when there is limitation of abduction of the thigh with motion lost beyond 10 degrees. In general, 38 C.F.R. § 4.71, Plate II provides a standardized description of hip movement, to include showing that normal hip flexion is from 0 to 125 degrees, and normal hip abduction is from 0 to 45 degrees. There is no indication of ankylosis, flail joint, impairment of the femur, to warrant additional ratings for right hip disability. 38 C.F.R. § 4.71a. Degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added, under Diagnostic Code 5003. 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, X-ray evidence of involvement of two or more major joints or two or more minor joint groups, warrants a 10 percent evaluation; with the addition of occasional incapacitating exacerbations, a 20 percent evaluation is warranted. 38 C.F.R. § 4.71a, DC 5003. There is no indication that a rating higher than 10 percent is warranted for the Veteran's right hip disability. The Veteran appeared for a VA examination in April 2009. X rays were completed in conjunction with the examination. The examiner diagnosed for the right hip degenerative arthritic changes and mild acetabular dysplasia, and for the lumbar spine degenerative arthritis, spondylosis and facet joint arthritis. In regard to his right hip, the Veteran reported pain, weakness, stiffness, swelling, and lack of endurance. He reported difficulty with prolonged walking and standing, and exhibited a limp. There was right hip tenderness and guarding of movement. Right hip flexion was 115 degrees, extension 20 degrees, adduction 20 degrees, abduction 35 degrees, external rotation 40 degrees, and internal rotation 25 degrees. Left hip range of motion was normal. After repetitive use, there were additional right hip limitations of pain and lack of endurance. The Veteran appeared for a VA examination in November 2009. The Veteran reported right hip weakness, stiffness, swelling, giving way, lack of endurance, locking and pain. He described difficulty with prolonged standing, walking and sitting. An April 2010 addendum provided additional information on the right hip. Right hip tenderness was found. Flexion was 120 degrees, extension was 25 degrees, adduction was 20 degrees, abduction was 40 degrees, external rotation was 50 degrees and internal rotation was 30 degrees. No additional impact was noted after repetitive use. The Veteran appeared for a VA examination in December 2010. In regard to the right hip, he reported weakness, stiffness, swelling, giving way, lack of endurance, locking, fatigability, tenderness, subluxation and pain. The Veteran reported constant flare-ups of pain and difficulty walking, sitting and standing. The Veteran used a cane as an assistive device in part due to his right hip and back. Right hip flexion was 70 degrees, 60 degrees at pain, extension of 20 degrees, 15 degrees at pain, adduction at 10 degrees, abduction at 30 degrees, external rotation at 40 degrees, and internal rotation at 20 degrees. Upon repetitive motion there was 10 degrees additional limitation of flexion. Upon repetitive use, pain, fatigue, lack of endurance and weakness were noted. The Veteran's treating chiropractor submitted a report dated November 2012, in which he reported the Veteran's current symptoms to include constant low back pain and radiating right buttocks/ lower extremity, and right hip joint pain. The Veteran struggles in part with household tasks, prolonged sitting, walking over a quarter mile, and limping due to left knee condition. Right hip flexion was 60 degrees, extension was 15 degrees, abduction was 45 degrees, adduction was 20 degrees, internal rotation was 10 degrees, and external rotation was 25 degrees. The Veteran's treating chiropractor submitted a report dated October 2014, in which he reported the Veteran's current symptoms to include constant low back pain and radiating right buttocks/ lower extremity, and right hip joint pain. The Veteran struggles in part with household tasks, prolonged sitting, walking over a quarter mile, and limping. The Veteran appeared for a VA examination in October 2014. X rays were completed in conjunction with the examination. Right hip flexion was at 90 degrees and extension was 5 degrees. Right hip internal rotation was 20 degrees, external rotation was 5 degrees, right hip abduction and adduction was 20 degrees. Left hip flexion, extension, rotation, abduction, and adduction were normal. There was no change in range of motion after repetitive use testing. There is right hip pain on weight and non-weight bearing, and mild anterior/groin pain with palpation. There is an additional 5 degree loss of right hip flexion, extension, abduction, and adduction when the joint is used repeatedly over time. Muscle strength was normal. There is no ankylosis. There was no malunion or nonunion of the femur, flail hip joint or leg length discrepancy. Examination of the left hip was normal. The examiner stated that the Veteran can perform light physical and sedentary tasks due to his right hip disability. The Board accepts that the Veteran reports painful motion in his right hip. See DeLuca. The Board also finds the Veteran's own reports of symptomatology to be credible. As such, the Board finds that the currently assigned 10 percent evaluation is appropriate for the Veteran's right hip disability on the basis of painful motion as due to arthritis involving one joint with no incapacitating exacerbations. Rice Considerations The Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, entitlement to TDIU is not raised by the record, as there is no suggestion that the Veteran is unable to work due to his service-connected disabilities. Extraschedular Considerations The Board also notes that the record does not establish that the schedular criteria are inadequate to evaluate the Veteran's low back disability and right hip disability so as to warrant the assignment of a higher evaluation on an extra-schedular basis. There is no showing that the Veteran's disabilities are manifested by symptomatology not contemplated by the rating criteria. Accordingly, the Board finds that the criteria for submission for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to an initial rating in excess of 20 percent prior to December 10, 2010, for lumbar spine degenerative joint disease, facet joint arthritis, and spondylosis is denied. Entitlement to a rating in excess of 40 percent on and after December 10, 2010, for lumbar spine degenerative joint disease, facet joint arthritis, and spondylosis is denied. Entitlement to an initial rating in excess of 10 percent for right hip degenerative arthritis and acetabular dysplasia is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs