Citation Nr: 1723918 Decision Date: 06/23/17 Archive Date: 06/29/17 DOCKET NO. 07-26 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for a lumbar spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from January 1983 to January 1986, May 1987 to May 1991, July 2002 to November 2002, August 2004 to August 2006. He also served in a reserve component of the military as well as in the Army National Guard, including periods of active duty for training from May 2007 to October 2007 and May 2010 to September 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for a lumbar spine disability and assigned a 10 percent evaluation for that disability, effective August 15, 2006. A timely notice of disagreement was received in February 2007. A statement of the case (SOC) was issued in July 2007. In August 2007, the Veteran filed a Substantive Appeal (VA Form 9) and requested a hearing before the Board. In a statement received in November 2008, the Veteran requested that his request for a Board hearing be cancelled. As there have been no further requests for a hearing, the Board deems the hearing request to be withdrawn. See 38 C.F.R. §20.704 (2016). This matter was before the Board in April 2011, when the Board decided that a statement from November 2008 submitted by the Veteran was a notice of disagreement with respect to the issues of having higher initial evaluations for a left shoulder disability and hypertension. Accordingly, the Board remanded the issues of entitlement to an initial compensable rating for hypertension and entitlement to an initial evaluation in excess of 10 percent for a left shoulder disability for the required issuance of a SOC and to give the Veteran and his representative an opportunity, in response, to complete the steps necessary to perfect his appeal of this downstream claim to the Board by also filing a VA Form 9 or equivalent statement. See Manlicon v. West, 12 Vet. App. 238 (1999). The Board also remanded the issue of entitlement to an initial evaluation in excess of 10 percent for a lumbar spine disability for further development. In February 2016, the RO issued the required SOC regarding the issues of entitlement to an initial compensable rating for hypertension and entitlement to an initial evaluation in excess of 10 percent for a left shoulder disability. The Veteran did not perfect his appeal of these downstream claims by also filing a VA Form 9, so they are no longer before the Board. See 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (2016) (the regulations outlining the time limitations and procedures for appealing adverse RO determinations to the Board). Furthermore, the issues have not been certified on appeal. The claim for entitlement to an initial evaluation in excess of 10 percent for a lumbar spine disability has now been returned to the Board for further adjudication. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. FINDING OF FACT The Veteran's lumbar spine disability is not manifested by a forward flexion of the thoracolumbar spine greater than 30 degrees but less than 60 degrees, a combined range of motion less 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. CONCLUSION OF LAW The criteria for an initial rating higher than 10 percent for a lumbar spine disability are not met. 38 U.S.C.A. §1155 (West 2014); 38 C.F.R. §4.71A, General Rating Formula for Diseases and Injuries of the Spine (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act (VCAA) provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. VA's duty to notify was satisfied by a letter sent in August 2006, prior to the initial rating decision. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and relevant post-service treatment records and providing an examination when necessary. 38 U.S.C.A §5103A (West 2014); 38 C.F.R. §3.159 (2016). Here, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits. The Veteran has been medically evaluated in conjunction with this claim. All identified and available treatment records have been secured. The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Applicable Laws Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. §1155; 38 C.F.R. §4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. §4.7. The determination of whether an increased evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Because the Veteran is appealing the initial assignment of the disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present. See Fenderson v. West, 12 Vet. App. 119 (1999). In its evaluation, the Board shall consider all information and lay and medical evidence that is of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Board shall give the benefit of the doubt to the claimant. 38 U.S.C.A. §5107B. The Board acknowledges that a claimant 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with the consideration of the possibility that different ratings may be warranted for different time periods. The Board has considered the entire record, including the Veteran's VA clinical records. These show complaints and recommendations for treatment, but will not be referenced in detail. 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 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. The Veteran's lumbar spine disability is rated as 10 percent disabled under 38 C.F.R. §4.71A, General Rating Formula for Diseases and Injuries of the Spine (2016). The Board notes that while the regulations pertaining to the disabilities of the spine have undergone recent amendments, these changes do not affect the present claim, as the Veteran's claim was filed in 2006, subsequent to the most recent regulation change. Thus, the rating criteria currently in effect, the General Rating Formula for Diseases and Injuries of the Spine, are the only rating criteria for current consideration. A rating of 10 percent is warranted when there is 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 is greater than 120 degrees but not greater than 235 degrees, or there is a 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 height. 38 C.F.R. §4.71A, General Rating Formula for Diseases and Injuries of the Spine. A rating of 20 percent is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, a 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. Id. A rating of 40 percent is warranted when there is forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankyloses of the entire thoracolumbar spine. Id. A rating of 50 percent is warranted for unfavorable ankyloses of the entire thoracolumbar spine and a rating of 100 percent is warranted for unfavorable ankylosis of the entire spine. Id. Background The Veteran seeks a rating higher than 10 percent for his lumbar spine disability. He asserts his disability is more severe than what is represented by a 10 percent rating. Service connection for a low back strain with muscle spasms was granted in a November 2006 rating decision, at which point a 10 percent rating was assigned, effective August 15, 2006. The Veteran submitted a notice of disagreement in February 2007. The Veteran's service treatment records indicate a diagnosis of intervertebral disc disorder with myelopathy in March 2005. The Veteran was first afforded a VA examination in October 2006. The Veteran reported that he began having back pain in late 2004 or early 2005 while taking part in Warrior Olympics while in service. The Veteran claimed bilateral low back pain that would occasionally radiate into the buttock. The Veteran denied any incapacitating episodes in the past 12 months in which a physician prescribed bed rest. The Veteran denied having any flare ups. Flexion was to 90 degrees with objective evidence of pain at 75 degrees, extension was to 20 degrees without pain, lateral flexion was to 30 degrees without pain, and rotation was to 45 degrees bilaterally without pain. The range of motion did not change with repetitive use on examination. The examiner noted that there was no spasm on palpation of the back or any tenderness. The muscle strength and sensory examinations were both normal. Straight leg raising was negative bilaterally. The Veteran's motor strength, tone, and light touch sensation were normal in both lower extremities. His deep tendon reflexes were 2+ and symmetrical in all four extremities, and he had a normal gait. Upon examination of the feet, the examiner noted that there was no evidence of abnormal weight bearing, weakness, or instability. X-rays of the lumbar spine were noted to be normal and the examiner diagnosed the Veteran with lumbar degenerative disc disease. The Veteran was provided with another VA examination in June 2008. The Veteran reported increased pain and decreased range of motion in his lumbar spine since the last disability examination. He also complained of constant moderate pain that radiates into his right posterior lower trunk, affecting his ability to walk to less than a quarter mile before flare-ups occur. Flexion was to 80 degrees with pain, extension was to 20 degrees with pain, right and left lateral flexion were to 20 degrees with pain, and right and left rotation were to 20 degrees with pain. The range of motion was noted to be additionally limited following repetitive use due to pain, resulting in a 10 degree further reduction in flexion. The examiner noted grade 1 mild paravertebral muscle spasm with tenderness. Straight leg raises were noted to be positive at 10 degrees with the right, negative with the left. Motor was 5/5 with symmetrical bulk and tone within normal limits. Deep tendon reflexes were intact. Sensory was diminished around the right lateral lower leg. There was also diminished sensation on the plantar aspect of the right heel and the lateral S1 distribution of the right foot. The Veteran's gait was found to be normal. The examiner noted that an MRI from April 2005 shows degenerative disk disease L4-S1, with the disk impressing on the right S1 nerve root. The examiner diagnosed the Veteran with degenerative disc disease of the lumbar spine with evidence of right lumbar radiculopathy. In an April 2012 VA examination, the Veteran reported constant nonradiating low back pain aggravated by prolonged sitting. The Veteran also reported flare ups on 3-5 days of every month lasting all day during which he stated he is essentially incapacitated. Flexion was to 70 degrees, extension was to 30 degrees, right and left lateral flexion was to 35 degrees, and right and left rotation was to 35 degrees, all with end of range of pain and with no decrement due to pain or fatigue following repetitive motion. There was no lumbosacral tenderness or muscle spasm. Straight leg raise was negative bilaterally. Motor and sensory exams were normal in the lower extremities. Reflexes were 2+ and symmetric in the lower extremities. The Veteran's gait was normal. Lumbosacral x-rays from April 2012 showed disc space narrowing at L4-L5 and L5-S1. The examiner provided a diagnosis of lumbosacral degenerative disc disease. An addendum opinion was added to the Veteran's file in June 2013 noting that the Veteran's C-file was reviewed and no changes were warranted to the prior April 2012 report. In February 2016, the Veteran was provided a VA examination to examine potential peripheral nerve conditions. The Veteran was diagnosed with right lower extremity radiculopathy. The Veteran was not diagnosed with any peripheral nerve conditions in his left lower extremity. The Board has considered all applicable statutory and regulatory provisions to include 38 C.F.R. §§4.40 and 4.59, as well as the holding in Deluca v. Brown, 8 Vet. App. 202 (1995), regarding functional impairment attributable to pain, particularly in light of the fact that the Veteran contends his disability is essentially manifested by pain. Under 38 C.F.R. §4.59, painful motion is considered limited motion even though a range of motion is possible beyond the point when pain sets in. Hicks v. Brown, 8 Vet. App. 471, 421 (1995). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. §4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. Deluca v. Brown, 8 Vet. App. 202 (1995). For a 20 percent evaluation, forward flexion of the thoracolumbar spine must be actually or functionally limited between 30 and 60 degrees, or the combined range of motion must be less than 120 degrees, or there must be muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. The Board notes that the evidence indicates that the Veteran's forward flexion was noted to be at 90 degrees, with pain starting at 75 degrees in October 2006, forward flexion was noted to be 80 degrees in June 2008, and 70 degrees in April 2012, with pain noted by the examiner. Furthermore, at no time on appeal, even considering evidence of pain, was the Veteran's combined range of motion less than 120 degrees nor did the Veteran exhibit muscle spasms or guarding severe enough to result in abnormal gait or abnormal spinal contour. Thus, the Board finds that the current 10 percent evaluation, even considering the principles of 38 C.F.R. §§4.40 and 4.45, fully and appropriately contemplates the degree of limited motion that exists during periods of exacerbation. Alternatively, the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes allows a rating of 20 percent where there is IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. However, although the Veteran's service treatment records in 2005 indicate a diagnosis for IVDS, the Veteran's multiple post-service VA examinations do not contain an IVDS diagnosis. Moreover, there is no evidence in the Veteran's records to suggest that he had incapacitating episodes that required bed rest prescribed by a physician. See 38 C.F.R. §4.71(a) Diagnostic Code (DC) 5243. The current regulations also allow for separate neurological evaluations. The Board notes that the Veteran's June 2008 VA examination indicates diminished sensory around the right lateral lower leg, however, the Veteran has already been granted service connection for radiculopathy in his right lower extremity related to those findings. The Veteran's left lower extremity has not been found to have any signs or symptoms of radiculopathy and there have not been any noted neurological abnormalities such as bowel or bladder problems. See October 2006, June 2008, April 2012, and February 2016 VA examinations. For these reasons, a higher rating is not warranted based on intervertebral disc syndrome and additional separate ratings are not warranted for any neurological symptomatology. The Board has also considered whether any additional Diagnostic Codes are applicable; however, the Board finds that the ratings for the spine and nerves are the most appropriate. The Veteran has asserted that his symptoms are more severe than what is represented by a 10 percent rating. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Board finds the Veteran's statements to be credible. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). However, the Board finds that the totality of the evidence indicates the current 10 percent rating appropriately compensates the Veteran's symptoms. The Board concludes that the medical findings on examinations are of greater probative value than the Veteran's allegations regarding the severity of his disability. The symptomatology noted in the medical and lay evidence has been adequately addressed by the evaluations assigned and do not more nearly approximate the criteria for higher evaluations at any time during all relevant periods on appeal. In summary, the Board finds that the Veteran's currently assigned 10 percent rating is commensurate with the symptoms manifested. ORDER Entitlement to an initial rating higher than 10 percent for a lumbar spine disability is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs