Citation Nr: 1722280 Decision Date: 06/15/17 Archive Date: 06/29/17 DOCKET NO. 10-40 224 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a rating in excess of 10 percent for low back disability with arthritis prior to November 9, 2016, and in excess of 20 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. B. Kass, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1979 to June 1983 and December 1990 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In November 2016, the RO increased his disability rating to 20 percent, effective November 9, 2016. The Veteran testified before the undersigned Veterans Law Judge in November 2015. A transcript of the hearing has been associated with the record. The Board remanded this claim in February 2016. The claim has since returned for further appellate consideration. The issue of diabetes mellitus type II has been raised by the record in a November 2013 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is REFERRED to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). FINDINGS OF FACT 1. Prior to August 19, 2013, the Veteran's low back disability manifested with normal range of motion measurements and a mild to moderate functional impairment. 2. From August 19, 2013 through November 9, 2016, the Veteran's low back disability manifested with guarding, muscle spasm, tenderness, and functional loss that closely approximates a combined range of motion of the thoracolumbar spine below 120 degrees. 3. Since November 9, 2016, his low back disability manifests with pain, fatigue, lack of endurance, and functional loss that closely approximates forward flexion limited to 30 degrees or less, but not by unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. Prior to August 19, 2013, the criteria for a rating in excess of 10 percent for a low back disability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237 (2016). 2. From August 19, 2013 through November 9, 2016, the criteria are met for a 20 percent rating for a low back disability. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237 (2016). 3. From November 9, 2016, the criteria for a 40 percent rating for a low back disability are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act (VCAA) As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant 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) (2016). VA has complied with its duty to assist in developing this claim. 38 C.F.R. § 3.159(c). Indeed, relevant treatment records, service treatment records (STRs), post-service VA treatment records, lay statements in support of the claim, and the hearing transcript have been associated with the claims files. He has also been provided with VA examinations that are adequate for adjudication. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103 (c)(2) requires that the hearing officer who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The Board hearing complied with the provisions of Bryant. Here, the November 2015 Board hearing was in compliance with the provisions of Bryant. Neither the Veteran nor his representative asserted that the VLJ failed to comply with 38 C.F.R. § 3.103 (c)(2) or identified any other prejudice in the conduct of the hearing. In addition, the lay statements and submissions during the course of the appeal, as well as those of the Veteran's representative, demonstrate actual knowledge of the elements and evidence necessary to substantiate the claim decided herein because the submissions and statements speak to why the Veteran believes that his hearing loss disability is related to service. As such, the Board finds that the VLJ complied with the duties set forth in Bryant and the claim may be adjudicated based on the current record. Cf. Procopio v. Shinseki, 26 Vet. App. 76 (2013). The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained and that is obtainable. He has received all essential notice and has had a meaningful opportunity to participate effectively in the development of this claim. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). VA's duties to notify and assist him with this appeal have been satisfied. II. Legal Criteria - Increased Ratings Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes (DCs). 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.20 (2016). When a question arises as to which of two ratings applies under a particular DC, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016). Consideration must be given to increased evaluations under other potentially applicable DCs. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2016). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating an appellant's service-connected disabilities. 38 C.F.R. § 4.14. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App.202, 206 (1995). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The United States Court of Appeals for Veterans' Claims also has recently held, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. The provisions of 38 C.F.R. §4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The RO has rated the Veteran's service-connected low back disability as 20 percent disabling pursuant to DC 5237. The Veteran seeks a higher rating. The Veteran's lumbar spine disability is currently staged and it was initially rated as 10 percent disabling in September 1991, then 20 percent since November 2016. Under the General Rating Formula, a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is assigned due to unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DCs 5237. Normal range of motion for the thoracolumbar spine is flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and rotation from 0 to 30 degrees. The combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Plate V (2016). During the course of this appeal, the Veteran was afforded an October 2008 VA examination. He reported his low back pain increasing and he was nonresponsive to medication or physical therapy. The Veteran did not report any flare-ups. His range of motion was normal for all measurements but he had pain at 90 degrees of forward flexion. There was no change during repetitive testing. The examiner noted tenderness in the left paraspinal muscles at L4/L5. The Veteran had a positive straight leg raise test on the left side at 20 degrees. The examiner concluded the Veteran's back disability showed mild to moderate functional impairment. In August 2013, the Veteran had a private evaluation. His range of motion of the thoracolumbar spine measured flexion to 50 degrees; extension to 20 degrees; lateral bending to 20 degrees; and lateral rotation to 10 degrees. Upon palpation examination, there was myospasm from L1 through L5. The examiner determined there was a lumbar spine disk bulge from L2/L3 through L5/S1. He found a restricted range of motion in passive motion as well. There was guarding and soft tissue dysfunction, represented by muscle spasm and tenderness. The Veteran also exhibited lumbar nerve root inflammation and irritation evidenced by a positive Spurling test and Straight Leg Raising test. In reviewing the evidence, Dr. G.D. believed the physical findings represented significant orthopedic impairments that were consistent with physical dysfunction rendering him incapable of working. In October 2013, the Veteran demonstrated flexion to 20 degrees and extension to 10 degrees. In November 2013, the Veteran was afforded a VA examination. He did not report any flare-ups. His forward flexion measured to 70 degrees with no objective evidence of painful motion. His other range of motion measurements were normal with no objective evidence of painful motion. The Veteran could perform repetitive use testing without additional limitation. The examiner found there was functional loss in the form of pain on movement. There was no localized tenderness or pain to palpation, muscle spasms, or guarding. He had normal muscle strength and no muscle atrophy. His deep tendon reflexes were absent in his knees and ankles. There was a normal sensory examination and negative straight leg raise tests. There were no signs of radiculopathy and no ankylosis. In November 2016, a VA examiner diagnosed lumbar disc disease with bilateral lower extremity radiculopathy. He experienced chronic increased pain, acupuncture was not helping, walked with a cane, and had difficulty putting on his shoes. The Veteran also reported flare-ups and functional loss in the form of increased pain. The Veteran had an abnormal range of motion with forward flexion to 50 degrees and extension to 20 degrees. His other measurements were normal. There was functional loss due to increased pain. The abnormal range of motion contributed to functional loss due to limited use from pain. There was evidence of pain with weight bearing. The examiner found objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue. Pain, fatigue, and lack of endurance significantly limited the Veteran's functional ability, including during flare-ups. Additional factors contributing to his disability were disturbance of locomotion and interference with sitting and standing. There was guarding that resulted in an abnormal gain or spinal contour. He had normal strength in all muscled strength testing and no muscle atrophy. Straight leg raise testing was positive. There was no anklyosis. In regards to functional impact, the examiner found the Veteran's back disability was progressing. During the course of the appeal, the Veteran has competently and credibly reported experiencing low back pain, muscle spasms, and radiating pain. His lay complaints are supported by objective evidence of pain, muscle spasms, and guarding. Prior to August 2013, the Veteran's low back disability manifested with normal range of motion measurements, the Veteran did not report any flare-ups, and there was only mild to moderate functional impairment. At the August 2013 examination, the Veteran's combined range of motion was 130 degrees. Based on these measurements and additional functional loss due to guarding, muscle spasm, tenderness, the Veteran's combined range of motion closely approximated a combined range of motion of the thoracolumbar spine below 120 degrees from August 2013 through November 2016. During the November examination the Veteran had an abnormal range of motion with forward flexion to 50 degrees and extension to 20 degrees. Further, the November 2016 VA examiner affirmatively noted the Veteran's condition was medically consistent with his statements describing functional loss from pain, fatigue, and lack of endurance, including during flare-ups. In light of the above-noted lay and medical evidence, and in consideration of this functional impairment and the holdings of Deluca, Mitchell, and Burton, the Board finds that, resolving all doubt in the Veteran's favor, forward flexion of the thoracolumbar spine was most closely approximated to 30 degrees since November 2016. See 38 C.F.R. §§ 4.40, 4.45, 4.59. 38 C.F.R. § 4.71a, DC 5237. Based on the record, the Board finds that prior to August 2013, a 10 percent rating is appropriate; from August 2013 through November 2016, the criteria for a rating of 20 percent has been approximated for a combined range of motion of the thoracolumbar spine below 120 degrees; and from November 2016, a 40 percent for the low back disability has been approximated for flexion limited to 30 degrees. 38 C.F.R. §§ 4.3, 4.7, 4.71a. The next-higher rating of 50 percent under the General Rating Formula requires unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5237 (2016). There was no anklyosis during the November 2016 VA examination. In addition, the remaining evidence dated during the applicable time period is negative for findings or impressions of ankylosis. Therefore, a disability rating in excess of 40 percent is not warranted under the General Rating Formula for any time during the period on appeal. 38 C.F.R. § 4.71a, DC 5237 (2016). The Board considered whether this claim should be referred for an extraschedular rating. 38 C.F.R. § 3.321 (b) (2016). As shown above, the Veteran's low back disability is primarily productive of pain, fatigue, lack of endurance. Notably, these symptoms, and their resulting impairment and functional loss, are contemplated by the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.71a, DC 5237, DeLuca, Mitchell, supra. The evidence in this case does not show such an exceptional disability picture that the available schedular ratings for his low back disability are inadequate. In addition, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016). Further, the Board does not find that referral for extraschedular consideration is warranted because his symptoms are not unusual and are adequately described by the rating criteria. Thun v. Peake, 22 Vet. App. 111 (2008). Thus, all of his symptoms are contemplated by the Rating Schedule, and were taken into consideration when assigning a 40 percent rating. ORDER A rating in excess of 10 percent for low back disability prior August 19, 2013, is denied. A rating in excess of 20 percent, but no higher, for low back disability from August 19, 2013 to November 9, 2016, is granted. A rating of 40 percent, but no higher, for low back disability from November 9, 2016, is granted. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs