Citation Nr: 1733239	
Decision Date: 08/15/17    Archive Date: 08/23/17

DOCKET NO.  10-20 854	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to an initial evaluation in excess of 10 percent prior to February 23, 2013, and 40 percent thereafter, for chronic low back strain with intervertebral disc syndrome (IVDS).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and his stepdaughter


ATTORNEY FOR THE BOARD

Christopher Murray, Counsel
INTRODUCTION

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).

The Veteran had active military service from February 1971to March 1973.

This case initially came before the Board of Veterans' Appeals (Board) on appeal of a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

The Veteran testified before the Board at August 2011 and August 2012 hearing.  Transcripts of these hearings are of record.  The Veterans Law Judge (VLJ) who conducted these hearings is no longer employed at the Board.  The Veteran was so informed and offered an opportunity for another Board hearing.  See 38 C.F.R. § 20.717 (2016).  In June 2017, the Veteran responded that he does not desire another Board hearing and requested his appeal be decided based on the evidence of record.

This case was previously before the Board in December 2012, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development.  Following the Board's remand, the AOJ awarded separate evaluations for radiculopathy of the bilateral lower extremities and entitlement to a total disability evaluation based upon individual unemployability (TDIU).  See January 2014 rating decision.  The Veteran has not appealed the initial evaluation or effective date of these awards.  Therefore, these downstream issues are not within the Board's jurisdiction.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).


FINDINGS OF FACT

1. Prior to April 25, 2012, the Veteran's lumbar spine disability was manifested by no more than subjective complaints of pain and decreased range of motion with flexion of the lumbar spine limited to more than 60 degrees and a total combined range of motion of the lumbar spine greater than 120 degrees; there is no objective evidence of muscle spasm or guarding resulting in an abnormal gait or abnormal spinal contour, ankylosis, incapacitating episodes totalling at least 2 weeks in a 12-month period, or associated neurological disability for which a separate evaluation has not been previously awarded.

2. From April 25, 2012, to February 23, 2013, the Veteran's lumbar spine disability was manifested by no more than subjective complaints of pain and decreased range of motion with flexion of the lumbar spine limited to more than 30 degrees; there is no objective evidence of ankylosis, incapacitating episodes totalling at least 4 weeks in a 12-month period, or associated neurological disability for which a separate evaluation has not been previously awarded.

3. As of February 23, 2013, the Veteran's lumbar spine disability is manifest by flexion of the lumbar spine limited to 30 degrees of motion; there is no objective evidence of ankylosis, incapacitating episodes totalling at least 6 weeks in a 12-month period, or associated neurological disability for which a separate evaluation has not been previously awarded.


CONCLUSIONS OF LAW

1. Prior to April 25, 2012, the criteria for an initial evaluation in excess of 10 percent for chronic lumbar strain with IVDS have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Codes 5237 and 5243 (2016).

2. From April 25, 2012, to February 23, 2013, the criteria for an initial evaluation of 20 percent, but not greater, for chronic lumbar strain with IVDS have been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Codes 5237 and 5243 (2016).

3. As of February 23, 2013, the criteria for an initial evaluation in excess of 40 percent for chronic lumbar strain with IVDS have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Codes 5237 and 5243 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

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 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).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Veteran has been provided notice letters throughout the appeal that address all notice elements required.  All pertinent treatment records identified by the Veteran have been obtained, and VA examinations have been provided where warranted.  There has been no allegation of errors with the duties to notify and/or assist in the instant case.  See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009); see also Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 Veteran fails to raise them before the Board); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

As noted above, the instant appeal has been previously remanded in December 2012.  There has been substantial compliance with the Board's remand directives as they pertain to the issue decided herein, and adjudication of the appeal may proceed.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159.

Analysis

Board decisions must be based on the entire record, with consideration of all the evidence.  38 U.S.C.A. § 7104.  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122 (2000).  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).

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 the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  The Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then current severity of the disorder.  Fenderson v. West, 12 Vet. App. 119 (1999).  In Fenderson, 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.  Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement.  38 C.F.R. § 4.45.

The Veteran's lumbar spine disability has been assigned an initial evaluation of 10 percent prior to February 23, 2013, and 40 percent thereafter.  The Veteran asserts a higher evaluation is warranted throughout the appeal period.

Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), 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 warrants a 100 percent rating.  Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating.

Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine, warrants a 40 percent rating.  

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 spine contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent rating.

Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or combined range of motion of 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 warrants a 10 percent rating.

Note (1): Evaluate any associated objective neurological 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 thoracolumbar spine is zero to 90 degrees, extension is 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 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.

Also pertinent to the instant appeal is Diagnostic Code 5243, pertaining to intervertebral disc syndrome.  Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent evaluation is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  See 38 C.F.R. § 4.71a, DC 5243.

For purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 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.  See 38 C.F.R. § 4.71a, DC 5243, Note (1).

Turning to the record, the Veteran was provided a VA examination in January 2008.  He reported subjective symptoms of constant, sharp back pain and a dull ache radiating to the right buttock without fatigue, stiffness, weakness, spasms, or flare-ups.  Physical examination revealed forward flexion to 80 degrees, extension to 30 degrees, left lateral flexion to 25 degrees, right lateral flexion to 30 degrees, and full lateral rotation bilaterally.  The total range of motion of the lumbar spine was 225 degrees.  There was no additional loss of motion due to pain or following repetitive use.  The Veteran's disability did not result in muscle spasm, tenderness or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  

At an April 25, 2012, VA examination, the Veteran reported constant low back pain without flare-ups.  Physical examination revealed forward flexion to 50 degrees and extension to 10 degrees of motion.  There was no additional loss of motion due to pain or following repetitive use.  The Veteran's disability was also noted to result in muscle spasm, tenderness or guarding severe enough to result in an abnormal gait.  The VA examiner noted the Veteran does have IVDS of the thoracolumbar spine, but that this condition did not result in any incapacitating episodes.

Finally, at a February 23, 2013 VA examination, the Veteran reported subjective symptoms of severe back pain with flare-ups resulting only in worsening radiculopathy.  Physical examination revealed forward flexion to 30 degrees and extension to 5 degrees of motion.  The VA examiner noted the Veteran's spine disability results in weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing.  The VA examiner noted the Veteran does have IVDS of the thoracolumbar spine, but that this condition did not result in any incapacitating episodes.

Applying the range of motion measurements to the General Ratings Formula, the above evidence demonstrates the Veteran is not entitled to an initial evaluation greater than 10 percent for his back disability prior to April 25, 2012.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.  There is no medical evidence of forward flexion limited to 60 degrees or less, combined range of motion of the thoracolumbar spine to 120 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spine contour during this stage of the appeal.  Id.  Further, the Veteran is not entitled to an evaluation greater than 10 percent based on intervertebral disc syndrome as there is no competent medical evidence of incapacitating episodes, defined by regulation as physician prescribed bed rest, totaling at least 2 weeks.

In making this finding, the Board acknowledges an August 2008 VA examination report reflecting ranges of motion of 20 degrees of flexion and 15 degrees of extension, findings which would support an increased evaluation.  However, viewed by itself and in conjunction with other contemporaneous medical records, the Board finds this examination is not an accurate reflection of the then-severity of the Veteran's lumbar spine disability.  In this regard, the VA examiner specifically noted the Veteran put forth "minimal" and "very minimal" effort with flexion and extension, respectively.  Further, as noted above, a VA examination conducted only seven months prior showed full extension and nearly-full flexion to 80 degrees of motion.  Likewise, March 2010 VA treatment records specifically note the Veteran experienced no decreased motion of the spine.  Finally, a March 2009 Social Security Administration functional assessment determined the functional restrictions alleged by the Veteran are disproportionate to the clinical findings and symptoms are only partially credible.  Based on such evidence, the Board affords the August 2008 VA examination report little probative value as it relates to the severity of the Veteran's lumbar spine disability.

However, the Board finds an initial evaluation of 20 percent is warranted for the Veteran's lumbar spine disability as of April 25, 2012, the date a VA examination found flexion limited to 50 degrees of motion.  An initial evaluation greater than 20 percent is not warranted during this stage of the appeal, as there is no medical evidence of flexion limited to 30 degrees or less, ankylosis of the lumbar spine or entire spine, or incapacitating episodes requiring physician-prescribed bed rest totalling at least 4 weeks.

Finally, at 40 percent, the Board observes the Veteran has been assigned the highest possible schedular evaluation based on limitation of motion as of February 23, 2013.  As there is no objective evidence of ankylosis of the spine or incapacitating episodes totalling at least 6 weeks, an evaluation greater than 40 percent is not warranted for this stage of the appeal.

The Board acknowledges the Veteran's subjective complaints of pain through his ranges of motion, which he subjectively describes as severe.  However, the Board notes the objective evidence of record indicates such pain does not limit the Veteran's functional range of motion of the lumbar spine to less than those levels discussed above and, as such, does not serve as a basis for an initial evaluation in excess of those assigned herein.  See Mitchell v. Shinseki, 25 Vet. App. 32 ("pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.")

The Board also acknowledges the Veteran's contentions that his service-connected low back disability warrants an evaluation greater than that assigned herein.  However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment.  Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his service-connected lumbar spine disability.  See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also Davidson v. Shinseki, 581 F.3d 1313 (2009).

The Board has considered whether a separate evaluation for any other neurological disability is warranted.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1).  However, there is no competent evidence of record to indicate the Veteran suffers from bowel or bladder impairment that would warrant a separate evaluation for neurological manifestations of his low back disability.  As noted above, the Veteran has previously been awarded separate evaluations for radiculopathy of the bilateral lower extremities.

In light of the above, the Board finds that the Veteran is not entitled to an initial evaluation in excess of 10 percent prior to April 25, 2012, or in excess of 40 percent as of February 23, 2013, for his service-connected lumbar spine disability.  However, the Board finds that an initial evaluation of 20 percent is warranted for the period from April 25, 2012, to February 23, 2013.  A preponderance of the evidence weighs against the assignment of greater initial evaluations, and the benefit-of-the-doubt rule does not apply to this aspect of the appeal. 


ORDER

An initial evaluation in excess of 10 percent prior to April 25, 2012, for chronic lumbar strain with IVDS is denied.

An initial evaluation of 20 percent, but not greater, for the period April 25, 2012, to February 23, 2013, for chronic lumbar strain with IVDS is granted, subject to the laws and regulations governing the payment of monetary benefits.

An initial evaluation in excess of 40 percent as of February 23, 2013, for chronic lumbar strain with IVDS is denied.


____________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs