Citation Nr: 1745517	
Decision Date: 10/12/17    Archive Date: 10/19/17

DOCKET NO.  14-01 223	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to an initial compensable disability rating for human papillomavirus (HPV) status post colposcopy and loop electrosurgical excision procedure (LEEP).  

2.  Entitlement to an initial disability rating in excess of 10 percent for lumbar spine intervertebral disc syndrome (IVDS) and degenerative disc disease (DDD).  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

D. Chad Johnson, Associate Counsel


INTRODUCTION

The Veteran had active service from June 1999 to November 2007.  

These matters come to the Board of Veterans' Appeals (Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  

The Veteran's claims on appeal were previously remanded by the Board in August 2015 for additional development.  As the previously requested development has been completed, the matters are properly returned to the Board for further adjudication.  See Stegall v. West, 11 Vet. App. 268 (1998).  

During the pendency of the appeal, a November 2015 rating decision granted the current initial 10 percent disability rating for the Veteran's lumbar spine disability; however, as this does not represent a total grant of benefits sought on appeal, the claim remains before the Board.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).  

Additionally, a June 2016 rating decision granted service connection for bilateral lower extremity radiculopathy, each rated as 20 percent disabling from December 9, 2015.  Notably, the Veteran has not appealed these issues to the Board and they need not be addressed herein.  See 38 C.F.R. § 20.200 (2016).  Therefore, the Board will limit its consideration to the claim of entitlement to an initial disability rating in excess of 10 percent for lumbar spine disability, which has been properly certified to the Board on appeal.  Id.  

The Veteran was previously represented by a private attorney concerning her claim of entitlement to an initial disability rating in excess of 10 percent for a lumbar spine disability; however, the attorney withdrew as the Veteran's representative in February 2017, after providing notice to the Veteran.  Notably, The American Legion maintained its prior representation concerning the Veteran's claim of entitlement to an initial compensable disability rating for HPV.  Moreover, the previous appointment of American Legion as the Veteran's representative was not limited; therefore, the Board finds that following withdrawal of the limited attorney representative, the Veteran is now represented by American Legion in all issues currently before the Board.  


FINDINGS OF FACT

1.  For the entire period on appeal, the Veteran's service-connected HPV status post colposcopy and LEEP has been manifested by symptoms that do not require continuous treatment.  

2.  For the entire period on appeal, the Veteran's service-connected lumbar spine disability has been manifested by subjective low back pain with limited range of motion no worse than forward flexion to 65 degrees and combined range of motion of the thoracolumbar spine to 215 degrees, without any muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour, spinal ankylosis, incapacitating episodes, or additional objective associated neurologic abnormalities aside from her already service-connected bilateral lower extremity radiculopathy.  


CONCLUSIONS OF LAW

1.  The criteria for an initial compensable disability rating for human papillomavirus (HPV) status post colposcopy and loop electrosurgical excision procedure (LEEP) have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.116, DC 7612 (2016).  

2.  The criteria for an initial disability rating in excess of 10 percent for lumbar spine intervertebral disc syndrome (IVDS) and degenerative disc disease (DDD) have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5237 (2016).  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Due Process  

Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "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).  

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran's claim on appeal.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).  

II.  Initial Ratings - Generally  

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2016).  

When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2016).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2016).  However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided.  38 C.F.R. § 4.14 (2016).  

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  38 C.F.R. § 4.40 (2016).  With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes.  Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse.  Instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations.  38 C.F.R. § 4.45.  Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  Painful motion is an important factor of joint disability which is entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59 (2016).  However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable diagnostic code.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  

Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  With respect to the Veteran's initial rating claims on appeal, the Board has considered such claims from their assigned effective dates, which the Veteran has not appealed, as well as whether any additional staged rating periods are warranted.  

II.A.  Initial Rating - HPV  

The Veteran's service-connected HPV status post colposcopy and LEEP is currently rated as noncompensable from November 13, 2009, under the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs; specifically, pursuant to Diagnostic Code (DC) 7612, regarding disease or injury of the cervix.  38 C.F.R. § 4.116, DC 7612 (2016).  

Thereunder, a noncompensable disability rating is warranted for symptoms that do not require continuous treatment; a 10 percent disability rating is warranted for symptoms that require continuous treatment; and a maximum schedular 30 percent disability rating is warranted for symptoms that are not controlled by continuous treatment.  Id.  

Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against the Veteran's claim of entitlement to an initial compensable disability rating for HPV status post colposcopy and LEEP.  

Significantly, the evidence of record does not document that the Veteran's HPV status post colposcopy and LEEP has required continuous treatment for any period on appeal.  Upon VA examination in January 2010, the Veteran reported annual pap smears, biopsies, and LEEP treatment for her HPV, and diagnostic testing revealed an abnormal pap smear, epithelial cell abnormality, mild dysplasia, and HPV.  Thereafter, in October 2012, the Veteran denied current symptoms related to her gynecological condition and the VA examiner noted her condition was quiescent.  A December 2015 VA examination was likewise normal and the Veteran again denied current symptoms.  Additionally, while VA and private treatment records document intermittent abnormal pap smears, they do not document continuous treatment for the Veteran's service-connected HPV.  

To the extent the Veteran asserts that her annual checkups, with treatments including LEEP and colposcopies, constitute continuous treatment for HPV, the Board disagrees; rather, these abnormal laboratory results, annual checkups, and intermittent treatments have been acute in nature and the Board cannot equate these with continuous treatment for HPV.  As such, an initial compensable disability rating for HPV status post colposcopy and LEEP is not warranted.  Id.  

As the preponderance of evidence weighs against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim is denied.  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

II.B.  Initial Rating - Lumbar Spine  

The Veteran's service-connected lumbar spine intervertebral disc syndrome (IVDS) and degenerative disc disease (DDD is currently rated as 10 percent disabling under the General Rating Formula for Diseases and Injuries of the Spine.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, DC 5243 (2016).  

The General Rating Formula for Diseases and Injuries of the Spine provides the following, in pertinent part:  a 10 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but less than 85 degrees; or, the 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 of more of the height.  Id.  A 20 percent disability rating is warranted for 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.  Id.  A 40 percent disability rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  Id.  A 50 percent disability rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent disability rating is warranted for unfavorable ankylosis of the entire (thoracolumbar and cervical) spine.  Id.  These ratings are made 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.  Id.  

The Board acknowledges that intervertebral disc syndrome (IVDS) may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IVDS).  See 38 C.F.R. § 4.71a, DC 5243, Formula for Rating IVDS (2016).  For the purposes of evaluations under the Formula for Rating IVDS, 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.  Id. at Note 1.  Notably, the provisions for evaluating IVDS are not for application because the probative evidence of record does not document incapacitating episodes with bed rest prescribed by a physician.  Id.  

As noted above, the Veteran is already separately service connected for bilateral lower extremity radiculopathy, and those issues are not currently before the Board.  The Board has also considered whether the Veteran is entitled to a separate disability rating for any other objective neurologic abnormalities associated with his service-connected lumbar spine disability, such as bowel or bladder impairment.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1.  However, the probative objective evidence of record does not document that the Veteran's lumbar spine condition has resulted in any additional associated neurologic abnormalities, such as bowel or bladder impairment, for any period on appeal.  

Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against the Veteran's claim of entitlement to an initial disability rating in excess of 10 percent for lumbar spine IVDS and DDD for the entire period on appeal.  

Significantly, the evidence of record does not document that the Veteran's lumbar spine disability has been manifested by 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 for any period on appeal in order to warrant an increased 20 percent disability rating.  Id.  

Upon VA examination in March 2010, the Veteran reported symptoms including back pain, stiffness, fatigue, spasms, and decreased motion, but she denied any paresthesias, numbness, weakness, or bowel or bladder problems related to her back condition.  She reported flare-ups of back pain which occurred four times per week and lasted up to twenty-four hours, during which she experienced limitation of motion and pain which prohibited physical activity.  Physical examination revealed normal posture and gait, without evidence of muscle spasms, guarding of movement, tenderness, or weakness.  Muscle strength was normal without evidence of atrophy or ankylosis of the spine.  Initial range of motion included forward flexion to 90 degrees and combined range of motion to 240 degrees, without evidence of painful motion or additional loss of range of motion up repetition.  

Upon VA examination in October 2012, the Veteran reported flare-ups which limited prolonged standing, and being incapacitated two weeks out of the prior year.  Initial range of motion included forward flexion to 90 degrees and combined range of motion to 240 degrees, with no evidence of functional loss or additional limitation in range of motion upon repetition.  There was also no evidence of localized tenderness, pain to palpation, guarding, or muscle spasms of the thoracolumbar spine.  Muscle strength testing was normal, without atrophy, and reflexes and sensory testing were likewise normal.  

Upon VA examination in December 2015, the Veteran reported that her back condition was unchanged, with ongoing pain and stiffness which required the use of a transcutaneous electrical nerve stimulation (TENS) unit and muscle relaxers, and flare-ups of pain which prohibited full physical activity.  Initial range of motion included forward flexion to 65 degrees and combined range of motion to 215 degrees, with noted pain, but without additional limitation of motion upon repetition, localized tenderness, guarding, or muscle spasms, or ankylosis.  The examiner noted the presence of IVDS, but stated that the Veteran had not experienced incapacitating episodes requiring prescribed bed rest and treatment by a physician in the past 12 months. 

The VA and private treatment records document the Veteran's ongoing back pain, which show in some limitation of motion of the thoracolumbar spine; however, they do not document limitation of forward flexion to 60 degrees or less or muscle spasms or guarding severe enough to result in an abnormal gait or spinal contour.  Additionally, to the extent that the evidence of record documents that the Veteran's low back strain is consistently manifested by ongoing pain with physical activity with results in limited motion, the Board finds that such pain and functional limitation are adequately contemplated by the Veteran's assigned 10 percent disability rating for the entire period on appeal.  38 C.F.R. § 4.71a (specifically noting that it is rated "with or without symptoms such as pain"); see also 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202; Mitchell, 25 Vet. App. 32.  

In conclusion, the preponderance of evidence weighs against the Veteran's claim of entitlement to an initial disability rating in excess of 10 percent for lumbar spine IVDS and DDD for the entire period on appeal, there is no reasonable doubt to be resolved, and the claim is denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. 49.  


ORDER

An initial compensable disability rating for HPV status post colposcopy and LEEP is denied.  

An initial disability rating in excess of 10 percent for lumbar spine IVDS and DDD is denied.  




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs