Citation Nr: 1742864	
Decision Date: 09/27/17    Archive Date: 10/04/17

DOCKET NO.  14-02 564	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office 
in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to a disability evaluation in excess of 10 percent, prior to September 20, 2016, for a disability of the lumbar segment of the spine, on appeal from an initial grant of service connection.  

2.  Entitlement to a disability evaluation in excess of 20 percent, after September 19, 2016, for a disability of the lumbar segment of the spine, on appeal from an initial grant of service connection. 


ATTORNEY FOR THE BOARD

Patrick J. Costello, Counsel 



INTRODUCTION

The appellant served on active duty from July 1986 to March 1989.

This matter comes before the Board of Veterans' Appeals, hereinafter the Board, on appeal from a January 2012 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO), located in St. Petersburg, Florida.  In that action, the RO granted service connection for a lower back disability and assigned a disability evaluation of 10 percent.  The Veteran was notified of that action and he subsequently appealed to the Board asking that the back disability be assigned a higher rating.

After reviewing the claim, the Board, in June 2015 remanded this issue to the agency of original jurisdiction (AOJ) for the purpose of obtaining additional medical data.  The record reveals that the Veteran underwent a VA orthopedic examination in September 2016 and, based on the examination results, the Veteran's disability evaluation was increased to 20 percent, effective September 20, 2016.  The claim has since been returned to the Board for further review.  

Upon reviewing the development that has occurred as a result of the Board's Remand action, the Board finds that there has been substantial compliance with its remand instructions.  The Board notes that the United States Court of Appeals for Veterans Claims, hereinafter the Court, has concluded that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance."  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was not Stegall v. West, 11 Vet. App. 268 (1998) violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order").  The record indicates that the Board, through its instructions in the remand, sought to obtain medical information concerning the severity of the Veteran's lower back disorder.

The Board also sought to locate and include in the Veteran's claims file any additional medical records that were not previously obtained and included in the claims folder.  A medical examination that spells out the current manifestations and symptoms of the Veteran's back disorder has been obtained and those results have been included in the claims folder and any available medical records have been included in the claims folder.  The Board thus finds that the actions taken by the AOJ have fulfilled the Board's taskings.  Upon completion of the taskings, the AOJ then issued a Supplemental Statement of the Case (SSOC) and forwarded the claim to the Board.  Based on the foregoing, the Board finds that the AOJ substantially complied with the mandates of the Board's Remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders).  Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. Section 3.655 (2016).  

The Board notes that when the appellant began his appeal, he was represented by a private attorney.  In December 2015, the private attorney withdrew from his representation of the Veteran.  The Veteran was contacted and an inquiry was made as to whether the Veteran wished to engage another accredited representative to assist him in his appeal.  The Veteran did not respond to the inquiry and the Board will assume that the Veteran does not wish to be represented and the Board may proceed with the adjudication of his claim.   


FINDINGS OF FACT

1.  The Veteran's service-connected lower back disorder is manifested by complaints of pain and limitation of motion.  However, there is no clinical evidence of atrophy, neuropathy, or muscle spasms.  

2.  The medical evidence does not show neurological symptoms, and that same evidence does not suggest that the Veteran has been prescribed bed rest for periods of four weeks or longer.   



CONCLUSIONS OF LAW

1.  The criteria for a disability rating of 20 percent, but no higher, for a lower back disability, prior to September 20, 2016, have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107(b), 5121 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.1000, 4.130, Diagnostic Code 5237 (2016).

2.  The criteria for a disability rating in excess of 20 percent evaluation for a lower back disability, after September 19, 2016, have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107(b), 5121 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.1000, 4.130, Diagnostic Code 5237 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Assist and Notify

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2016).  For the reasons to be discussed below, the Board finds that VA has satisfied its duties to the appellant under the VCAA.  A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements apply to all five elements of a service connection claim:  (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted.  Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006).

This claim arises out of the appellant's submission for an increased disability rating immediately following service connection being granted for a lower back disability and a 10 percent disability rating being assigned.  The Veteran has expressed disagreement with that award.  Where the underlying claim for service connection has been granted and there is disagreement as to downstream questions (such as the effective date or the rating assigned), the claim has been substantiated and there is no prejudice due to inadequate (or no) notice.  Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Once the underlying service connection claim is granted there is no duty to provide notice under 38 U.S.C.A. § 5103(a).  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).

VA has fulfilled its duty to assist the appellant in obtaining evidence.  VA obtained the appellant's service treatment records and post-service medical treatment records. Moreover, he has not identified any additional, outstanding records necessary to decide his pending appeal that have not been requested or obtained.  Given the foregoing, the Board finds that VA has met its duty to assist in this regard.

Also, the Veteran was given the opportunity to provide testimony before the RO and the Board - an opportunity he declined.  The Board is not aware, and the appellant has not suggested the existence of, any additional pertinent evidence not yet received.

Additionally, VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim.  In this respect, the record reflects that the appellant most recently underwent an orthopedic examination in September 2016.  The results of that examination have been included in the claims folder for review.  The most recent report indicated that the examiner was able to review of the available medical treatment records, interview and examine the appellant, and provide the results of the examination.  Therefore, this report is adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).

II.  Disability Ratings - Laws and Regulations

Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155 (West 2014).  Separate diagnostic codes identify the various disabilities.  Id.  It is necessary to rate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2 (2014), and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor.  38 C.F.R. § 4.3 (2016).  If there is a question as to which disability rating to apply to the veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2016).

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2016).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2 (2016); Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, the appellant is appealing the initial assignment of a disability rating, as such, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time.  Fenderson v. West, 12 Vet. App. 119 (1999).  Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by VA must be specifically explained.  Pernorio v. Derwinski, 2 Vet. App. 625 (1992).

Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. 4.6 (2016).  Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6 (2016).

The appellant's lower back disability has been rated pursuant to the rating criteria found at 38 C.F.R Part 4, Diagnostic Code 5237.  Diagnostic Codes 5235 through 5243 contemplate, respectively, vertebral fracture or dislocation, sacroiliac injury and weakness, lumbosacral or cervical strain, spinal stenosis, spondylolisthesis or segmental instability, ankylosing spondylitis, spinal fusion, degenerative arthritis of the spine, and intervertebral disc syndrome.  38 C.F.R. Part 4 (2016).  All diagnostic codes (except where 5243, intervertebral disc syndrome, is evaluated under the formula for rating intervertebral disc syndrome based on incapacitating episodes) are evaluated under the following criteria. 

Under this criteria, a higher, 50 percent, evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine under Diagnostic Codes 5235 through 5243.  A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine.  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 spinal 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 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 is given a 10 percent rating. ??
Normal forward flexion of the thoracolumbar segment of the spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are 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. See Note 2, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a (2016).

In evaluating the veteran's musculoskeletal impairments, the Board is cognizant of its responsibilities under the Rating Schedule.  38 C.F.R. § 4.71 et seq. (2016). In a precedent opinion, the VA General Counsel has held that disabilities rated under 38 C.F.R. § 4.71a, Diagnostic Code 5293 (now Diagnostic Codes 5237 et. seq.), involved limitation of motion, which warranted consideration based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40 and 4.45. VAOPGCPREC 36-97.  Under 38 C.F.R. § 4.40 (2016), functional loss or weakness due to pain supported by adequate pathology and evidenced by the visible behavior of the appellant is deemed a serious disability.  In the case of DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court expounded on the necessary evidence required for a full evaluation of orthopedic disabilities.  The Court held that ratings based on limitation of motion do not subsume 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45.  It was also held that the provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. However, the Board notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 (2016), should only be considered in conjunction with the diagnostic codes predicated on limitation of motion.  See Johnson v. Brown, 9 Vet. App. 7 (1996). 

The criteria further provides that intervertebral disc syndrome (preoperatively or postoperatively) will be rated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 (2016) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation.  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.  "Chronic orthopedic and neurologic manifestations" means orthopedic and neurological signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. ??

As to the neurological component, under 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2016), for rating sciatic neuropathy, a 10 percent rating is warranted when the impairment is mild, 20 percent when moderate, 40 percent when moderately severe, 60 percent when severe with marked atrophy, and 80 percent when there is complete paralysis when the foot dangles and drops, no active movement is possible of muscle below the knee, flexion of the knee is weakened or (very rarely) lost. ??
Ankylosis is the "immobility and consolidation of a joint due to disease, injury, or surgical procedure."  Colayong v. West, 12 Vet App 524 (1999) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (28TH Ed. 1994) at 86.). 

III.  Facts and Discussion

The appellant has come before the VA expressing disagreement with the disability rating that has been assigned for his lower back disability.  In conjunction with his original claim for benefits, the appellant underwent a VA Compensation and Pension Examination in March of 2011.  The results of that examination are as follows:

Forward Flexion		0 to 80 degrees 
Extension			0 to 10 degrees 
Right Lateral Flexion	0 to 20 degrees 
Left Lateral Flexion		0 to 20 degrees 
Right Lateral Rotation	0 to 20 degrees 
Left Lateral Rotation 	0 to 20 degrees

It was noted that the Veteran had complaints of daily pain with decreased motion and stiffness.  Nevertheless, when examined, the examiner indicated that there were no additional functional limitations based on pain.  The neurological portion of the examination produced "normal" readings.  Muscle strength was normal, there was no atrophy of muscle mass, no radiculopathy, and no ankylosis.  

A second spinal examination was accomplished in September 2016.  The results of that examination are as follows:

Forward Flexion		0 to 75 degrees 
Extension			0 to 25 degrees 
Right Lateral Flexion	0 to 25 degrees 
Left Lateral Flexion		0 to 25 degrees 
Right Lateral Rotation	0 to 25 degrees 
Left Lateral Rotation 	0 to 25 degrees

With repetitive use after three movements and over time, the measurements were:
 
Forward Flexion		0 to 70 degrees		0 to 65 degrees 
Extension			0 to 20 degrees		0 to 15 degrees 
Right Lateral Flexion	0 to 20 degrees		0 to 15 degrees 
Left Lateral Flexion		0 to 20 degrees		0 to 15 degrees 
Right Lateral Rotation	0 to 20 degrees		0 to 15 degrees 
Left Lateral Rotation 	0 to 20 degrees		0 to 15 degrees

It was noted that the Veteran had complaints of pain with throbbing, and a decreased ability to walk or stand for extended periods of time decreased motion and stiffness.  Nevertheless, when examined, the examiner indicated that there were no additional functional limitations based on pain.  The neurological portion of the examination produced "normal" readings.  Muscle strength was normal, there was no atrophy of muscle mass, no radiculopathy, and no ankylosis.  

Intervertebral disc syndrome was not diagnosed upon the conclusion of either examination.  Additionally, there was no suggestion, either via the examinations or through the Veteran's treatment records, that he has not been able to get out of bed.  He also has not been prescribed bed rest at any time during the appeal period.  

As reported, the Veteran's various private and VA medical treatment records have been obtained and included in the claims folder for review. These records do show treatment for back pain and limitation of motion thereof.  However, they do not show findings suggesting ankylosis, either favorable or unfavorable. 

Because unfavorable ankylosis of the lumbar segment of the spine has not been diagnosed, Diagnostic Code 5240 is not for application.  38 C.F.R. Part 4.  Since the Veteran has not been diagnosed as having favorable ankylosis of the spine, or fusion of the lumbar segments, then Diagnostic Code 5241 is also not for application.  Id.  With respect to Diagnostic Code 5235, it is not for application because the Veteran did not fracture any of his vertebras and the criteria used for evaluating intervertebral disc syndrome may not be used because the Veteran does not suffer from this malady.  Id. ??

Yet, the question remains - does the Veteran meet the criteria for a higher rating pursuant to the rating criteria for limitation of motion?  The VA examination reports are definite in the conclusions that the veteran is not suffering from sciatic neuropathy as a result of his lower back disability.  Although the veteran has reported pain, the medical evidence does not establish atrophy of the involved nerves or even muscle spasms of the back.  Moreover, the veteran has not experienced paralysis of the nerves and the veteran has been capable of moving his lower extremities, even though he complains of pain.  Additionally, there is nothing in the available medical records, and the statements provided by the veteran, that suggests that the he has suffered from incapacitating episodes or that he has been prescribed bed rest by a physician.  Also, none of the medical evidence from 2010 to the present suggests or insinuates that the veteran has ever been prescribed bed rest as a method of treatment for his lower back disability.  None of the medical records suggest or insinuate that the veteran has been bedridden solely as a result of his service-connected lower back disorder.  

With respect to the Veteran's restriction of motion, the highest evaluation available under 38 C.F.R. Part 4, Diagnostic Code 5237 is 100 percent.  However, a 100 percent rating requires unfavorable ankylosis, which the Veteran does not have.  The next lowest rating is a 40 percent rating.  However, the Veteran's forward flexion is not restricted to 30 degrees or less and he does not have favorable ankylosis of the spine.  With respect to the two examinations of record, the examination from March 2011 indicates that the Veteran's forward flexion was less restricted than it was when measured in 2016.  However, his extension, lateral flexion, and lateral rotation were measured as more limiting (or equal after repetitive use) in 2011 versus 2016. 

In determining whether an increased evaluation is warranted, the VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case an increased rating must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  While the medical evidence is somewhat lacking in evidence concerning how restricted the Veteran's back is, the appellant does experience daily pain and does have limitation of movement that, generously, more approximate, over the long course of this appeal, the rating criteria needed for a 20 percent rating but no higher.  That is, although the entire record is not without a measure of ambiguity, the Board concludes that the totality of the evidence (over the course of the appeal) in the file appears to be at least in approximate balance, and a 20 percent rating, but no higher, should be assigned to the Veteran's disability.

The Board has also considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.10, 4.40 and 4.45 would warrant a higher rating.  See Spurgeon v. Brown, 10 Vet. App. 194 (1997); and DeLuca v. Brown, 8 Vet. App. 202 (1995).  It is not disputed that the veteran has occasional limitation of motion of the lumbar spine, and that there is pain on motion.  Limited motion of the lumbar segment of the spine results in a certain level of functional loss.  However, there is a lack of objective medical evidence showing that the veteran suffers any additional measurable functional loss and/or limitation of motion during flare-ups or with use. ??

Additionally, the Board has considered whether it is appropriate to assigned "staged ratings," in accordance with Fenderson, supra.  However, the Board finds that the medical evidence demonstrates consistently and throughout that the veteran meets the criteria for a 20 percent rating from the date of claim.  Therefore, the assignment of staged evaluations in this case is not necessary. 


ORDER

Entitlement to an evaluation of 20 percent for a lower back disability, prior to September 20, 2016, on appeal from an initial grant of service connection, is granted. 

Entitlement to an evaluation in excess of 20 percent for a lower back disability, after September 19, 2016, on appeal from an initial grant of service connection, is denied.  



____________________________________________
KELLI A. KORDICH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs