Citation Nr: 1737372 Decision Date: 09/06/17 Archive Date: 09/19/17 DOCKET NO. 08-39 419 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an initial disability rating in excess of 20 percent for chronic lumbar strain with facet syndrome and spondylosis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2002 to October 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. This matter was previously before the Board, and, in March 2011, September 2012, and October 2015, this matter was remanded for further proceedings. FINDING OF FACT The Veteran's chronic lumbar strain with facet syndrome and spondylosis has not been shown to have manifested in ankylosis or caused forward flexion to be functionally limited to 30 degrees or less; no bed rest has been prescribed; and the weight of the evidence fails to show a separate compensable neurologic disability as a result of the service connected back disability. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a chronic lumbar strain with facet syndrome and spondylosis have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION 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 provided, and neither the Veteran, nor his representative, has either 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 his claim 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). Service treatment records, VA treatment records, and private treatment records have been obtained, including VA treatment records identified at the Veteran's Board hearing. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). At the Veteran's Board hearing, it was discussed that a new examination would be necessary to evaluate the Veteran's allegations that his back disability was more severe than rated. The Veteran was scheduled for an examination, but he failed to report, and has not provided good cause for his absence. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655. 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). There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met. Back At issue is whether the Veteran is entitled to a disability rating in excess of 20 percent for chronic lumbar strain with facet syndrome and spondylosis. Unfortunately the criteria for a disability rating in excess of 20 percent have not been met. The Veteran first filed for service connection in September 2006, and, in May 2007, the RO granted service connection and assigned a disability rating of 20 percent effective the day after separation from service. The Veteran appealed. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. 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. 38 C.F.R. § 4.7. Spinal disability ratings are assigned pursuant to the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes and the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. The Formula for Rating IVDS Based on Incapacitating Episodes does not provide an adequate basis for an increased disability rating during the period on appeal. In order to qualify for this rating criteria a Veteran must manifest incapacitating episodes which are defined as periods of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes, Note (1). The Veteran did testify to that his back would occasionally give out during flare-ups of his symptoms forcing him to remain on the floor for long periods of time. Nevertheless, no VA examiner during the period on appeal indicated that these episodes required physician prescribed bedrest, and the Veteran's treatment records do not otherwise memorialize physician prescribed bedrest. As such, the Formula for Rating IVDS Based on incapacitating episodes is not raised by the record, and it does not provide an adequate basis for an increased disability rating. Pursuant to the General Rating Formula for Diseases and Injuries of the Spine, a disability rating of 20 percent is assigned when a Veteran manifests a forward flexion greater than 30 degrees but not greater than 60 degrees; 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. 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. Id. at Note (2). A disability rating of 40 percent is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A disability rating of 50 percent is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine, and a total disability rating is assigned when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Neither a 50 percent disability rating nor a total disability rating are raised by the record, because the Veteran has not claimed in any of his written statements, nor do any of his private or VA treatment records indicate, that he has lost all motion in his spine. Therefore, there is no adequate basis to assign a disability rating of 50 percent or a total disability rating as ankylosis of the lumbar spine is not present. Moreover, the Board shall only consider assigning a disability rating of 40 percent based on criteria other than ankylosis. The Veteran's treatment records and statements throughout the period on appeal indicate that he has experienced back symptoms, including pain, stiffness, and loss of range of motion, throughout the course of his appeal. The Veteran underwent a VA examination in December 2006. The Veteran reported that the condition had existed since October 2005 and manifested in low back pain that can be elicited by physical activity and is relieved by rest. The Veteran denied that his back condition caused incapacitation, but he stated that it is hard to lift anything over 15 pounds, bend over, twist, or function normally. The examiner indicated that there was no ankylosis of the spine, and that there was no evidence of intervertebral disc syndrome. The Veteran's flexion was measured to 45 degrees with pain beginning to manifest at 45 degrees. The examiner opined that the Veteran's range of motion was limited after repetitive use by pain and lack of endurance, but the examiner noted that pain had the major functional impact. The examiner also noted that repetitive use testing did not result in an additional loss of range of motion. The Veteran underwent another VA examination in March 2009. The Veteran reported that his back manifested in chronic bothersome pain as well as weakness and easy fatigue in his back. The examiner noted that the Veteran used a cane. The Veteran's flexion was measured to 90 degrees, but there was moderate pain throughout the range of motion. The examiner observed that the Veteran was able to perform three repetitions of range of motion testing without an additional loss of range of motion, but the Veteran reported that his flexion was limited to 40 degrees upon flare-ups of his symptoms. The examiner indicated that the Veteran would remain in bed for 24 hours at a time during flare-ups, but that there was no prescription for this bed rest. A June 2010 VA treatment record indicates that the Veteran's flexion was measured to 40 degrees, and that standing from a flexed position took time and caused pain. The record also indicated that the Veteran was able to bend over to a flexion of 35 degrees before having difficulty standing up. The Veteran underwent another VA examination in April 2011. The Veteran reported back pain that had become progressively worse since the onset of his condition. The Veteran indicated that precipitating factors included bending, twisting, lifting, and carrying, and that alleviating factors included rest. The Veteran also reported fatigue, decreased motion, stiffness, and weakness. The Veteran stated that he was only able to walk one quarter of a mile to one mile. The examiner indicated that the Veteran used a cane. The examiner also indicated that the Veteran had not been prescribed bed rest to treat any incapacitating episodes. The Veteran's flexion was measured to 70 degrees. The examiner observed that there was objective evidence of pain following repetitive range of motion testing but no additional loss of range of motion. An April 2012 VA treatment record indicates that the Veteran's flexion was to 70 degrees with pain beginning at 50 degrees. The Veteran testified at a personal hearing before the Board in May 2016. The Veteran claimed that his spinal condition had increased in severity since his most recent VA examination. The Veteran indicated that his back sometimes gave out once or twice a month while performing simple tasks such as yard work and laundry, causing him to fall down. The Veteran claimed that during these incidents he would be forced to remain on the floor from anywhere from 30 minutes to a few hours before he could stand up. The Veteran also stated that he avoids climbing stairs, ladders, and bleachers, and that, at most, he can only walk for 30 to 45 minutes at a time. See Transcript. The weight of the evidence indicates that the Veteran is not entitled to a disability rating in excess of 20 percent for a back disorder. In order to meet the criteria for an increased disability rating the forward flexion in the Veteran's back must be shown to be functionally limited to 30 degrees or less. Here, the Veteran's forward flexion was measured multiple times throughout the period on appeal, but was never shown to be so limited. As such, the criteria for a disability rating for 20 percent have not been met. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Even if range of motion was slightly limited by pain however, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. Unfortunately, the Veteran is still not entitled to a disability rating in excess of 20 percent even after taking the potential of additional functional impairment into consideration. The Board notes that a December 2006 VA examination indicated that the Veteran's range of motion was limited after repetitive use due to pain and lack of endurance. Nevertheless, the examiner also indicated that the main factor resulting in this loss was pain, and pain is not sufficient to be considered additional functional impairment. Rather, the pain must functionally restrict the range of motion. Here, the Veteran was still able to demonstrate forward flexion well in excess of 30 degrees, despite the pain he was experiencing. Moreover, the examiner indicated that the Veteran did not result in a measurable loss of range of motion. The Board notes that in March 2009 the Veteran reported that his flexion was limited to 40 degrees as a result of additional functional impairment. Nevertheless, the examiner indicated that the Veteran was able to perform three repetitions of range of motion without additional loss of range of motion. Additionally, 40 degrees is still in excess of the measurement necessary to assign a disability rating in excess of 20 percent. Finally, an April 2011 VA examination indicated that in spite of objective evidence of pain following repetitive range of motion testing there was no additional loss of range of motion upon repetitive range of motion testing. Therefore, the Veteran has not been shown to have sufficient functional impairment in his back to support the assignment of a disability rating in excess of 20 percent. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran has not met the criteria for an increased orthopedic rating for his back disorder. When evaluating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2014). The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. At a December 2006 VA examination, the examiner assessed spondylosis with sciatica, but did not explain the basis for the assessment of sciatica. On physical examination there was no radiating pain on movement and straight leg raises were normal. No radicular symptoms were identified at a 2009 VA examination. In May 2010, the Veteran presented with constant low back pain with radiating pain down his right thigh to knee, never going below the knee. He experienced intermittent numbness and tingling in lower right side back which radiated into his buttocks. He denied muscle weakness, but had experienced episodes of right leg going out due to pain. Pain was worse with extension after flexion, squatting, or any compression pressure. Symptoms began intermittently in 2005 a year prior to getting out of service. There was no prior history of traumatic event initiating pain. Had trigger point injection, no relief. The Veteran was assessed with right lower extremity radicular pain/numbness, but the medical professional doubted that there was a nerve root source for the problem. In July 2010, the Veteran presented with complaints of right sided radicular lower back pain into his right lower extremity with no weakness. An MRI was conducted which showed degenerative disc disease, but no asymmetrical protrusion to indicate herniation or nerve root impingement. In August 2015, Straight leg raises were negative bilaterally. In July 2016, the Veteran underwent an EMG/NCV. The Veteran presented with lower back pain with radiculopathy to the right lower extremity for several mos with associated paresthesias and no focal muscle weakness. The provisional diagnosis was radiculopathy; however, the EMG was normal and provided no evidence of radiculopathy on the right side. A review of the file includes some mention of sciatica and a provisional diagnosis of radiculopathy. However, diagnostic testing failed to confirm a separate neurological disability, and even when sciatica was noted, there were no corresponding signs on clinical testing suggesting that even if it were found to be present at that time, a compensable rating would not be warranted. Regardless, the examination which the Veteran failed to attend might have shed more light on this matter, but without the additional medical inquiry, the Board is unable to assign a separate neurologic rating at this time. As such, entitlement to a disability rating in excess of 20 percent for a chronic lumbar strain with facet syndrome and spondylosis is denied. TDIU The Board has also considered whether a claim for a total disability due to individual unemployability (TDIU) has been raised by the record. See Rice. The Board finds that it has not, because the Veteran testified during a May 2016 personal hearing before the Board that he had secured and maintained sedentary employment. See Transcript, p. 5. As such, the Board shall not consider the possibility of TDIU any further. ORDER A disability rating in excess of 20 percent for chronic lumbar strain with facet syndrome and spondylosis is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs