Citation Nr: 1708006 Decision Date: 03/16/17 Archive Date: 04/03/17 DOCKET NO. 08-08 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an evaluation in excess of 50 percent for degenerative disc disease of the lumbar spine. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. Finch, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to September 1966 and from February 1973 to July 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In a November 2011 decision and remand, the Board restored the Veteran's 50 percent disability rating for his lower back disability, which had been reduced to 20 percent, and remanded the issues of an increased rating and total disability based on individual unemployability (TDIU) for further development and adjudication. The matter was again remanded in March 2014 for an addendum opinion to a 2012 VA spine examination. Following the Board's 2014 remand and after review of a 2014 VA examination, the RO granted the Veteran service connection in an August 2014 rating decision for incomplete paralysis of the right and left sciatic nerves, evaluated at 10 percent and 40 percent, respectively. The Veteran has not filed a notice of disagreement for the August 2014 rating decision, therefore these issues are not presently before the Board. In September 2015, the Board granted entitlement to TDIU for the period from January 3, 2012. Therefore, that issue is no longer on appeal. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The Board also remanded the Veteran's claim for TDIU prior to January 3, 2012 and an increased rating in excess of 50 percent for degenerative disc disease of the lumbar spine for further development. In January 2016 and May 2016, the Veteran submitted written statements requesting that his claim for TDIU prior to January 3, 2012 be withdrawn. A July 2016 Board remand and decision dismissed the Veteran's TDIU claim and remanded the claim for an increased rating for degenerative disc disease of the lumbar spine so that the originating agency could consider evidence and issue a supplemental statement of the case (SSOC). The RO issued an SSOC in August 2016. Therefore, all required development has been accomplished and the case has been returned to the Board for additional appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The preponderance of the evidence indicates that the Veteran's degenerative disc disease of the lumbar spine is not productive of unfavorable ankylosis of the entire spine or incapacitating episodes of intervertebral disc syndrome having a total duration of at least six weeks during the relevant period. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for degenerative disc disease of the 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 (DC) 5235-5243 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide Veterans with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2016); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increased rating, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Board finds that the August 2007 VCAA notice letter provided adequate preadjudicatory adequate notice to the Veteran. Concerning the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, post-service treatment records, and VA examination reports. The Board also notes that actions requested in the prior remands have been undertaken. Updated VA treatment records were obtained, and a VA examination was conducted. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). All known and available records have been obtained and associated with the Veteran's claims file, and the Veteran and his representative have not contended otherwise. Therefore, the Board finds that the record as it stands includes adequate and competent evidence to allow the Board to decide this matter and that no further development of the evidentiary record is necessary. VA has complied with the notice and assistance requirements, and the Veteran is not prejudiced by a decision on the claim at this time. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2016). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). But where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Therefore, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The schedular criteria for the rating of spine disabilities evaluates intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in a higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. Under the General Rating Formula, a 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, DC 5242. 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 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. § 4.25. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. 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. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to the matter on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. As discussed in further detail below, the Board finds that a disability rating in excess of 50 percent for degenerative disc disease of the lumbar spine is not warranted. During the pendency of the appeal, the principal medical evidence material to the claim is contained in the reports of VA spine examinations in August 2007, November 2008, January 2012, and October 2015. The remainder of the medical treatment records contain no evidence materially inconsistent with the findings of those examinations as they relate to the condition of the Veteran's service-connected degenerative disc disease of the lumbar spine. As reflected in each of the above-cited VA examination reports, the Veteran does not have symptoms productive of unfavorable ankylosis of the entire spine. VA examinations in August 2007, November 2008, and October 2015 noted that the Veteran did not have ankylosis. In addition, none of the examinations indicated that the entire cervical spine and entire thoracolumbar spine were fixed in flexion or extension or that the Veteran experienced symptomatology warranting a 100 percent disability evaluation. Although an October 2015 VA examination noted that the Veteran experienced pain causing functional loss and a decreased range of motion, the Veteran still had at least a 10 degree range of motion for extension, flexion, and rotation after three repetitions. As such, the Board finds that the Veteran's ability to bend, in addition to the examiners' denial of ankylosis, indicate that he does not have ankylosis in his thoracolumbar spine, let alone unfavorable ankylosis of the entire spine. In sum, the Board concludes that the preponderance of the evidence is against a finding that the Veteran has ankylosis of his entire spine. Therefore, a higher evaluation of 100 percent under the General Rating Formula is not warranted. The Board has also considered whether a higher evaluation is warranted under DC 5243 which contemplates ratings for intervertebral disc syndrome based on incapacitating episodes. See 38 C.F.R. § 4.71a. Intervertebral disc syndrome may be evaluated under the General Rating Formula or under the IVDS Formula whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, General Rating Formula, Note (6). Under the IVDS Formula, a 60 percent disability rating is the next higher rating that is provided for intervertebral disc syndrome based on incapacitating episodes. A 60 percent disability rating is warranted if the disability is productive of incapacitating episodes having a total duration of at least six weeks during the past 12 months. 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. C.F.R. § 4.71a, DC 5243, Note (1). Other than the Veteran's statement during a November 2008 VA examination that he had at least four incapacitating episodes within 12 months which required a week of bed rest, there is no medical evidence on file showing incapacitating episodes of such requiring bed rest prescribed by a physician. January 2012 and October 2015 VA examiners noted that the Veteran had IVDS of the thoracolumbar spine, but did not have any incapacitating episodes within the last 12 months. As there are no VA treatment records for incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician having a total duration of at least six weeks during the past 12 months, a higher rating under the IVDS Formula is not warranted. The Board has also considered whether the Veteran has any associated objective neurological abnormalities associated with his service-connected degenerative disc disease of the lumbar spine. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). As noted above, the Veteran is already in receipt of separate ratings for incomplete paralysis of the right and left sciatic nerves and those issues are not presently before the Board. Therefore, the question is whether the Veteran has any other associated neurological abnormalities associated with his lumbar spine disability. In this regard, the Board notes that the Veteran's two most recent VA examination reports indicate that he does not have associated bowel or bladder abnormalities, however. Lastly, the Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2014); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the established schedular criteria are inadequate to describe the severity and symptoms of the Veteran's disability. See Thun v. Peake, 22 Vet. App. 111, 118 (2008). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Here, the findings on VA examinations show he does have some motion and does not actually meet the criteria for the 50 percent evaluation presently assigned that contemplates unfavorable ankylosis. In addition, there is a higher schedular rating available for additional manifestations of symptomatology. In short, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun, 22 Vet. App. at 115. Consequently, referral for extraschedular consideration is not warranted. The Board also 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 condition fails to capture all the service-connected disabilities experienced. The Veteran is in receipt of service connection for multiple disabilities. All of the pertinent symptoms and manifestations have been evaluated by the appropriate diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). 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 service-connected conditions. Therefore, there exists no basis for referring the case for extraschedular consideration under Johnson. Finally, a claim for 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. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Board notes that the Veteran's claim for TDIU from January 3, 2012 was granted in a September 2015 Board decision and that he properly withdrew his claim for TDIU prior to January 3, 2012. Therefore, this issue has been adjudicated. ORDER Entitlement to an evaluation in excess of 50 percent for degenerative disc disease of the lumbar spine is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs