Citation Nr: 1726558 Decision Date: 07/11/17 Archive Date: 07/20/17 DOCKET NO. 13-25 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial increased rating for facet osteoarthritis with right L5 pars interarticularis defect of the lumbar spine (claimed as back condition), currently rated 10 percent disabling as of December 13, 2010. ATTORNEY FOR THE BOARD S. An, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1969 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Regional Office (RO) rating decision of August 2011 which granted service connection for facet osteoarthritis with right L5 pars interarticularis defect of the lumbar spine (claimed as back condition) and assigned a rating of 10 percent effective December 13, 2010. As the Veteran has not elected or obtained representation, the Board recognizes the Veteran as proceeding pro se in this appeal. The case was previously before the Board in April 2015 where entitlement to service connection for posttraumatic stress disorder (PTSD) was granted and the issue of increased initial rating in excess of 10 percent for the Veteran's back condition was remanded for further development. The matter has returned to the Board for appellate consideration. FINDING OF FACT Throughout the appeal period, the Veteran's facet osteoarthritis with right L5 pars interarticularis defect of the lumbar spine (claimed as back condition) was not manifested by forward flexion of the thoracolumbar spine to 60 degrees or less; or the combined range of motion of the thoracolumbar spine to 120 degrees or less; or muscle spasms or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reverse lordosis, or abnormal kyphosis; or incapacitating episodes of intervertebral disc syndrome. CONCLUSION OF LAW The criteria for a rating greater than 10 percent for facet osteoarthritis with right L5 pars interarticularis defect of the lumbar spine (claimed as back condition) have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5242 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and the Veteran has not alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claims at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records and private treatment records have been obtained. The Veteran was also provided VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiners provided the information necessary to rate the service-connected disabilities on appeal. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, the Veteran has not has objected to the adequacy of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2016). In determining the severity of a disability, the Board is required to consider 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. 38 C.F.R. §§ 4.1, 4.2 (2014); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2016). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2016). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. Lumbar Spine Disability In an August 2011 rating decision, the RO granted service connection for the Veteran's service-connected facet osteoarthritis with right L5 pars interarticularis defect of the lumbar spine (claimed as back condition) and assigned a 10 percent evaluation effective December 13, 2010 under the criteria of 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5242 (2016). The Veteran disagrees with the initial rating assigned and is seeking a higher evaluation. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27 (2016). Diagnostic Code 5010 states that arthritis due to trauma, substantiated by x-ray findings is to be rated as degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Codes 5010. In turn, degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12 month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12 month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12 month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12 month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Here, the evidence of record does not appear to show that the Veteran has experienced any IVDS in his lumbar spine during any period on appeal. VA examiners indicated that the Veteran did not have IVDS on June 2011 and January 2017. There is also no evidence showing that the Veteran had been prescribed any bed rest to treat his lumbar spine disability. There is no contention to the contrary. Because the prescription of bed rest is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran's lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; or, when the combined range of motion of the thoracolumbar spine is greater than 120 degrees; or when there is 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. Pertinent to the current appeal, a 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Note (2), see also Plate V. In this case, the RO assigned a 10 percent evaluation for the Veteran's low back disability as of December 13, 2010, the date he reported sustaining a back injury as a result of military service. VA examined the Veteran twice during this appeal's pendency. At the June 2011 VA examination for his low back, he reported experiencing flare-ups of low back pain that would occur weekly, and last seconds to minutes, but not longer. On examination, he demonstrated forward flexion to 90 degrees without pain, extension to 25 degrees without pain, lateral extension to 30 degrees bilaterally without pain, and rotation to 30 degrees bilaterally without pain. The combined range of motion of the thoracolumbar spine was 235 degrees. No muscle spasms were noted. There was no objective evidence of pain following repetitive motion. All normal initial range of motion and functional limitation was found and the examiner indicated there was no additional weakness, fatigability, incoordination, loss of range of motion, or loss of function with repetitive motion testing. The Veteran retained normal 5/5 strength with no muscle atrophy. There was no ankylosis present on examination and no IVDS. X-rays taken revealed mild facet arthropathy within the lower lumbar spine and right L5 pars interarticularis defect without listhesis. See June 2011 VA spine examination, Durham VAMC records. In January 2017, the Veteran was afforded a VA spine examination. During clinical interview, he reported flare-ups of low back pain with prolonged standing or walking. He also reported stiffness of his low back. On examination, he demonstrated flexion to 75 degrees, extension to 20 degrees, right lateral flexion 20 degrees, left lateral flexion 25 degrees, right rotation to 25 degrees, and left rotation to 20 degrees. There was evidence of pain on passive range of motion testing and pain when the joint was used in non-weight bearing. There was evidence of "mild pain on palpation of the lumbar region." But the examiner indicated there was no additional weakness, fatigability, incoordination, loss of range of motion, or loss of function with repetitive motion testing. The Veteran retained normal 5/5 strength with no muscle atrophy. There was no ankylosis of the spine and no IVDS. Arthritis was documented after diagnostic testing. See January 2017 VA spine examination. As the Board is not aware of any other evidence that shows the severity of the Veteran's low back disability, the Board finds that the Veteran is adequately compensated by the assigned 10 percent evaluation based on limitation of motion. Medical records do not demonstrate findings consistent with a higher 20 percent evaluation. Without a showing of limitation of flexion to 60 degrees, moderate limitation of lumbar motion, combined range of motion not greater than 120 degrees, or muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour, a rating higher is not appropriate or warranted here. At any point during the appeal period, the Veteran did not demonstrate flexion consistent with a 20 percent rating. As such, a rating in excess of 10 percent is not warranted. 38 C.F.R. § 4.71a, DCs 5235 to 5243 (2016). With regard to assigning an increased rating under Diagnostic Code 5010, the Veteran is already in receipt of a 10 percent evaluation for limitation of motion under the General Rating Formula for Diseases and Injuries of the Spine. As such, an additional or separate compensable evaluation is not warranted under Diagnostic Code 5010. The Board has also considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Although the January 2017 VA examiner found that the low back disability resulted in less movement than normal and pain on movement, the examiner also determined that the Veteran did not have weakness, fatigability, or incoordination that could significantly limit his functional abilities during flare-ups or when lumbar spine joints were used repeatedly over a period of time. Moreover, VA treatment records and VA examinations do not reveal additional functional impairment, including additional limitation of motion, on account of pain, weakness, that is not already contemplated by the now assigned 10 percent rating. 38 C.F.R. § 4.59. Thus, a higher rating is not warranted for the Veteran's low back disability even in consideration of painful motion and other factors such as weakness, fatigability, lack of endurance, and incoordination. Accordingly, a rating in excess of 10 percent for the Veteran's low back disorder is not warranted during the course of the appeal. Lastly, the Board notes that the Veteran is already receiving a separate rating for radiculopathy of the right lower extremity associated with his service-connected low back disability. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Throughout the appeal period, on examination, no motor or strength deficits, reflex asymmetry, or sensory changes were noted; no neurological abnormalities affecting the lower extremities were noted. Additionally, based on the lay and medical evidence there is no bowel or bladder impairment. After reviewing the evidence of record, the Board finds that the Veteran does not have any additional neurological impairment associated with his service-connected low back disability which would warrant a separate disability rating. Based on these findings, the Board concludes that a rating in excess of 10 percent for facet osteoarthritis with right L5 pars interarticularis defect of the lumbar spine (claimed as back condition) is not warranted. As such, the claim is denied. In denying a higher rating, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, there is no reasonable doubt to be resolved with respect to this issue. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. 38 C.F.R. § 3.321(b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). ORDER An initial rating in excess of 10 percent, for service-connected facet osteoarthritis with right L5 pars interarticularis defect of the lumbar spine, is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs