Citation Nr: 1721101 Decision Date: 06/09/17 Archive Date: 06/21/17 DOCKET NO. 14-04 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial disability evaluation in excess of 10 percent for a service connected low back strain with degenerative disease from June 28, 2011 to March 25, 2014, to a disability evaluation in excess of 20 percent from March 25, 2014 to December 19, 2016, and to a disability evaluation in excess of 40 percent from December 19, 2016. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from October 1953 to November 1957. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Veterans' Law Judge at a September 2012 videoconference hearing, and a transcript of this hearing is of record. In December 2016, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran a new VA medical examination. The action specified in the December 2016 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Before March 25, 2014, the Veteran's service connected low back disability was not characterized by forward flexion of the thoracolumbar spine to 60 degrees or less, combined range of motion of the thoracolumbar spine of 120 degrees or less, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour, or incapacitating episodes of at least two weeks duration. 2. From March 25, 2014 to December 19, 2016, the Veteran's service connected low back disability was not characterized by forward flexion of the thoracolumbar spine of 30 degrees or less, favorable ankylosis of the thoracolumbar spine, or incapacitating episodes of at least four weeks during a twelve month period. 3. From December 19, 2016, the Veteran's service connected low back disability has not been characterized by unfavorable ankylosis of the thoracolumbar spine or incapacitating episodes of at least six weeks duration in a twelve month period. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability evaluation in excess of 10 percent for a service connected low back strain with degenerative disease from June 28, 2011 to March 25, 2014 have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5242 (2016). 2. The criteria for entitlement to a disability evaluation in excess of 20 percent from March 25, 2014 to December 19, 2016 for a service connected low back strain with degenerative disease have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5242 (2016). 3. The criteria for entitlement to a disability evaluation in excess of 40 percent from December 19, 2016 for a service connected low back strain with degenerative disease have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5242 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder, including all virtual records. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all 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. 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 all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 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. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2016). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21 (2016). Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. The Veteran's low back disability is rating under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a (2016). Under the General Formula, diseases and injuries to the spine are to be evaluated under Diagnostic Codes 5235 to 5243 as follows: 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; Unfavorable ankylosis of the entire spine ............................................................. 100 Unfavorable ankylosis of the entire thoracolumbar spine ...................................... 50 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 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine ........................................................................................... 30 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 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 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): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and 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. Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes With incapacitating episodes having a total duration of at least six weeks during the past 12 months ........................................................................................................ 60 With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months ............................................................... 40 With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months ............................................................. 20 With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months ............................................................. 10 Note (1): For purposes of evaluations under 5293, 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 (2016). Additionally, under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology, and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, painful movement, swelling, deformity, or disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in a non-arthritis context, the Board should address its applicability. June 28, 2011 to March 25, 2014 At a June 2011 VA Physical Therapy Consult, the Veteran complained of low back pain, worsened by bending, lifting, standing, and walking. Range of motion was described as "within functional limits", but no specific measurements were provided. Tenderness to palpation and muscle tension were noted, as well as decreased core strength and trunk stability, but no abnormal gait or spinal contour was reported. Sensation was intact to light touch in the bilateral lower extremities. An x-ray of the lumbar spine showed mild to moderate degenerative joint disease. The Veteran was afforded a VA examination in November 2011. He reported using a back brace and cane for assistance. Forward flexion of the lumbar spine was from 0 to 80 degrees, with objective evidence of pain at 70 degrees. Extension was from 0 to 10 degrees, with objective evidence of pain at 5 degrees. Right and left lateral flexion were from 0 to 20 degrees, with objective evidence of pain at 20 degrees. Right and left lateral rotation were from 0 to 25 degrees, with objective evidence of pain at 25 degrees. Following three repetitions, forward flexion was additionally limited to 70 degrees and extension was limited to 5 degrees. All other range of motion was unchanged. The Veteran had tenderness to palpation of the thoracolumbar spine muscles, but no guarding or muscle spasms. Muscle strength was intact to the lower extremities. Deep tendon reflexes and sensation were normal. The Veteran did not have radiculopathy. The Veteran was diagnosed with intervertebral disc syndrome without incapacitating episodes. While VA outpatient treatment records note ongoing complaints of low back pain from November 2011 through March 2014, they do not provide evidence of detailed examinations of the Veteran's back and lower extremities nor do they show that any of the Veteran's treatment providers prescribed a period of bed rest for the Veteran's service connected low back disability. Based on the above evidence, entitlement to a disability evaluation in excess of 10 percent prior to March 25, 2015 must be denied. Even accounting for additional functional impairment due to pain or repetitive use, the Veteran did not have forward flexion of the thoracolumbar spine less than 60 degrees or combined range of motion of the thoracolumbar spine of less than 120 degrees during the applicable appeal period. Additionally, there is no evidence that the Veteran's low back disability was characterized by muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour or that he was diagnosed with radiculopathy. Furthermore, there is no evidence of any incapacitating episodes, so a higher evaluation under the Formula for Rating Intervertebral Disc Syndrome cannot be assigned. According, entitlement to a higher disability evaluation must be denied for the period from June 28, 2011 to March 25, 2014. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2016). March 25, 2014 to December 19, 2016 In September 2014, the Veteran was afforded a new VA examination. Forward flexion was from 0 to 50 degrees, with objective evidence of pain at 50 degrees. Extension was from 0 to 15 degrees, with objective of pain at 15 degrees. Lateral flexion and rotation were from 0 to 20 degrees bilaterally, with objective evidence of pain at 20 degrees. Following repetitive testing, lateral flexion and rotation were reduced to 15 degrees bilaterally. The Veteran reported flare-ups characterized by pain and stiffness approximately fifteen days per month, lasting a day, which make it difficult to perform activities of daily living. The Veteran had tenderness to palpation of the lumbar region, but no guarding or muscle spasms. Muscle strength was normal bilaterally in the lower extremities, with no evidence of muscle atrophy. Sensation to light touch was intact. Deep tendon reflexes were hypoactive bilaterally. Straight leg testing was positive bilaterally. The Veteran was diagnosed with moderate radiculopathy in the sciatic nerve distribution bilaterally. However, the examiner indicated that the Veteran does not have intervertebral disc syndrome. The Veteran reported using a back brace and cane for assistance. Based on this examination, the RO increased the Veteran's disability evaluation from 10 percent to 20 percent and additionally assigned separate disability evaluations of 40 for radiculopathy of the left lower extremity and 20 for radiculopathy of the right lower extremity. The RO assigned an effective date of March 25, 2014 for the increased ratings, because that it the date the Veteran submitted an increased rating claim for his low back, despite the fact that his claim was already on appeal. In August 2014, the Veteran was seen for complaints of low back pain and intermittent left lower extremity pain. An examination of the lumbar spine noted preserved lordosis with flexion 70% and extension 20%, with discomfort. Bilateral bending was full without pain. Strength was intact to the lower extremities, but deep tendon reflexes were diminished. Sensation was intact. VA outpatient treatment records note ongoing complaints of low back pain, but do not include a detailed evaluation of his condition. The Veteran did not report any incapacitating episodes and VA outpatient treatment records do not reflect that any of the Veteran's treatment providers prescribed bedrest for his low back condition. Based on the above evidence, a disability evaluation in excess of 20 percent cannot be assigned for the period on appeal. The evidence does not show that the Veteran's flexion of the thoracolumbar spine was less than 30 degrees during any period on appeal, even considering pain and additional limitation of motion during flare-ups. The Veteran also did not suffer from favorable ankylosis of the thoracolumbar spine or incapacitating episodes. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2016). After December 19, 2016 Since December 19, 2016, the Veteran has been rated as 40 percent disabling. To meet the criteria for a higher schedular evaluation, the Veteran must have unfavorable ankylosis of the entire thoracolumbar spine; however, there is no evidence in the available record that the Veteran meets this criteria. Indeed, the December 2016 VA examiner specifically found that the Veteran did not have ankylosis. The Board has also considered whether the Veteran could be afforded a higher disability evaluation under the Formula for Rating Intervertebral Disc Syndrome. However, there is no evidence that he suffered from incapacitating episodes of at least six weeks duration in a twelve month period at any time since December 2016. Accordingly, a disability evaluation in excess of 40 percent is not warranted for any period on appeal. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2016). The Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2016). Here, the Veteran was provided with the relevant notice and information, and he has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed condition. Neither the Veteran nor his representative has argued that the VA examiner's opinions are inadequate, or that any prejudice results from the assistance provided for this appeal. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015), cert. denied, (U.S. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board ... to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Finally, the Veteran testified at a personal hearing before a member of the Board. The hearing was adequate as the Veterans' Law Judge who conducted the hearing explained the issue and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). ORDER A higher disability evaluation for the Veteran's service connected low back strain with degenerative disease is denied for the entire period on appeal. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs