Citation Nr: 1750190 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 10-17 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an initial evaluation in excess of 10 percent disabling for a chronic lumbar strain and left sacroiliac strain. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Rachel E. Jensen, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 2004 to June 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in North Little Rock, Arkansas, that granted service connection for a chronic lumbar strain and left sacroiliac strain and assigned a 10 percent disability rating, effective September 18, 2008. The Board previously remanded this claim for further evidentiary development in July 2011. All necessary development having been accomplished, the matter is properly before the Board. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran submitted a timely Notice of Disagreement to an October 2014 rating decision denying service connection for chronic pain disorder, depression, osteoarthritis, and severe pyriformis, and denying an increased rating in excess of 10 percent disabling for chronic pelvic pain. Although the RO has not yet issued a Statement of the Case (SOC) for any of these issues, the Board notes that they are acknowledged in the Board's electronic Veterans Appeals Control and Locator System (VACOLS). Additionally, an appeals election letter was sent to the Veteran in February 2015 acknowledging receipt of the NOD and describing the future process. Accordingly, as the receipt of the NOD has been acknowledged by the RO, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where an NOD had not been recognized. Since VACOLS reflects that the NOD has been documented and acknowledged, and that additional action is pending at the RO, Manlincon is not applicable with respect to these issues. Thus, the Board will not further address these matters at this time. FINDING OF FACT The most extreme manifestations of the Veteran's lumbar disability are forward flexion limited to 50 degrees, increased pain, and fatigability/lack of endurance. CONCLUSION OF LAW The criteria for an initial evaluation of 20 percent, but no higher, for chronic lumbar strain and left sacroiliac strain are met throughout the appeal period. 38 U.S.C.A. § 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003, DC 5237 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his 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 a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided. 38 C.F.R. § 4.14. 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 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where the schedular criteria does not provide for a noncompensable rating, such a rating is assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's chronic lumbar strain and left sacroiliac strain are currently assigned a 10 percent disability rating effective September 18, 2008, under 38 C.F.R. § 4.71a, DC 5237. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). Ratings under the General Rating Formula 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. The General Rating Formula provides for assignment of a 10 percent rating where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or there is vertebral fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. An 100 percent rating requires unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine at Note (2); see also 38 C.F.R. § 4.71a, Plate V. Alternatively, disability involving disc disease may be rated under the Formula for Rating IVDS Based on Incapacitating Episodes. That formula provides a 10 percent disability rating for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating 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 disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. 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). Degenerative arthritis is rated under Diagnostic Code 5003. DC 5003 provides that degenerative arthritis that is established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, a 10 percent rating is assigned with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, and a 20 percent rating is assigned with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. Note (1) provides that the 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Id. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). In determining if a higher rating is warranted based on greater limitation of motion due to pain on use, including use during flare-ups, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2012). Similarly, painful motion alone does not constitute limited motion for rating under diagnostic codes pertaining to limitation of motion. Id. Pain may result in functional loss, however, if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in 38 C.F.R. §§ 4.40 and 4.45. Id. The Veteran first noted pain in his lower back within a year of the underlying pelvic injury suffered in service. Over the course of the appeal period, he has undergone several rounds of physical therapy, has tried numerous medications to address pain and inflammation, has had spinal injections, and uses a back brace and cane to ambulate. A letter from his physical therapist in March 2008 indicated that the Veteran had to perform activities such as walking, standing, and sitting in short intervals to lessen the strain on his lower back. A June 2008 MRI indicated mild scoliosis, left sacroiliac joint dysfunction/dislocation syndrome, thoracic spine pain on the left at the T8-T9 and T9-T10 levels with tenderness. A December 2008 examination revealed a halting gait with a slight limp favoring the left side. A February 2009 MRI indicated minimal spondylosis in the lower lumbar spine. The Veteran underwent a VA spine examination in April 2009 which diagnosed chronic lumbar strain and left sacroiliac strain. Range of motion testing revealed forward flexion to 70 degrees with pain at 70 degrees, and a combined range of motion of 160 degrees. There was no additional weakness, fatigability, incoordination, additional restricted range of motion or functional impairment following repetitive stress testing. The Veteran reported painful flare-ups for which he would self-adjust his back, take medication, and use a cane. The examiner noted a slight sway to the left in the Veteran's gait. October 2009 and May 2010 MRIs were unremarkable with spina bifida diagnosed. Several lay statements from the Veteran in December 2009 and April 2010 testified to increased pain and limitation of function with normal daily activities, flare-ups that severely limited activity, and his need to do daily exercises. The Veteran underwent another VA examination in March 2012 where he was diagnosed with chronic lumbosacral strain, and chronic left sacroiliac ligament strain. Forward flexion was 90 degrees or more and combined range of motion was 240. Functional loss resulted in pain on movement and interference with sitting, standing, and weight-bearing. No localized tenderness, pain on palpation, or guarding was noted. An MRI indicated degenerative disc disease (DDD) at L4-L5 and L5-S1, with pars defect at L-5, and mild degenerative changes at points of articulation. Difficulties with driving, laundry and dishwashing, as well as the inability to perform any job with standing, lifting, and walking, were listed. The Veteran reported that he would lose up to 50 percent of his range of motion during a flare-up. He exhibited pain and tremulousness with bending, but weakness, fatigue or incoordination were not observed. The examiner determined that the Veteran's condition was moderately severe. A September 2013 MRI found alignment and configuration of the lumbar spine within normal limits, and no degenerative joint disease was found. Another VA spine examination was conducted in April 2014 where lumbosacral strain, degenerative arthritis of the spine, and sacroiliac joint dysfunction with lumbar strain were diagnosed. The Veteran indicated that he was experiencing a flare-up during the examination. Forward flexion was 50 degrees and the combined range of motion was 140 degrees. Pain on movement, interference with sitting, standing, and weight-bearing, and a lack of endurance were noted. Generalized tenderness to touch over the lumbar spine and into the left buttocks and hip were observed, with no spasm or guarding. Mild left lower extremity radiculopathy with involvement of the femoral and sciatic nerves were noted. The Veteran reported regular use of a cane. The Veteran submitted a statement in April 2014 discussing his medical history, prescribed medications, and the symptoms he experiences. He noted frustrations with pain management and stated that undergoing the VA examination had caused increased pain levels. He reported being unemployed but attending an online college. An additional spine examination was done in October 2015 by the same examiner as the March 2012 examination, again diagnosing lumbosacral strain and sacroiliac strain. The examiner noted that the Veteran did not experience flare-ups. Range of motion was normal, with forward flexion at 90 degrees or greater and a combined range of motion of 240 degrees. Pain was noted on examination but did not cause functional loss. The examiner noted that the Veteran's range of motion remained good despite pain, there was no guarding or muscle spasm, no pain with weight-bearing, and no tenderness. Mild intermittent left lower extremity radiculopathy with sciatic involvement was noted to be of mild severity. The Veteran reported regular use of a brace and cane. The examiner stated that the Veteran's condition affected his ability to work because he can only do sedentary jobs. Diagnostic testing revealed mild multilevel DDD changes with a normal sacroiliac joint. Following the October 2015 examination, the Veteran was service-connected for left lower extremity radiculopathy associated with his lumbar disability. Although medical examiners are responsible for providing a "full description of the effects of a particular disability upon the claimant's ordinary activity" (see 38 C.F.R. § 4.10), it is the task of the adjudicator to "interpret reports of examination in the light of the whole recorded history, reconciling various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present." See 38 C.F.R. § 4.2; see also Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Board finds that the March 2012 and April 2014 VA examinations are thorough and adequate and, taken in connection with the other lay and medical evidence of record, provide a sound basis upon which to base a decision with regard to the Veteran's appeal. Although the latest VA examination displays a normal range of motion, the examiner stated that the Veteran did not suffer from flare-ups. However, it is well documented in the Veteran's lay statements, medical treatment records, and the April 2014 VA examination that the Veteran has suffered from flare-ups which increased the severity of his symptoms. The April 2014 examination was conducted during a flare-up, and is thus the best diagnostic representation of the extremes of the Veteran's disability. The Veteran suffered additional functional loss as evidenced by the abnormal range of motion, pain, limitations on walking, sitting, and standing, and lack of endurance during the flare-up. As these factors are not contemplated in the relevant rating criteria, they must be considered in conjunction with the Diagnostic Code. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. at 204-7; Johnson v. Brown, 9 Vet. App. at 7. Given the limitation of forward flexion to 50 degrees and the additional symptoms experienced during a flare-up, the Board finds that the Veteran's chronic lumbar strain and left sacroiliac strain most closely approximates a 20 percent disability rating. Because the Veteran has consistently described his flare-ups, even noting that his range of motion was 50 percent reduced during a flare-up, the Board finds that a 20 percent rating is warranted for the entire appeal period. At no time has the Veteran displayed forward flexion of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. As such, entitlement to a higher evaluation under DC 5237 is not demonstrated. There is no evidence of IVDS or incapacitating episodes meriting a higher evaluation under the Formula for Rating IVDS. Additionally, there is no higher evaluation available under DC 5003. An initial rating may encompass a claim for entitlement to a total disability rating based on individual unemployability (TDIU). Rice v. Shinseki, 22 Vet. App. 447 (2009). In order for the issue to be raised, there must be evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). The record reflects that although the Veteran is currently unemployed, he is attending an online college. He indicated that he left his previous employment because he was unable to perform the physical tasks necessary. He then opened his own business doing online work. He discussed frustrations with that business, but did not indicate he was unable to perform the necessary tasks for that work. Additionally, the VA examinations of record have indicated that the Veteran is limited to sedentary work where he is able to reposition himself frequently. Consequently, the Board finds there is no implicit claim for a TDIU. Rice v. Shinseki, 22 Vet. App. at 453. Additionally, the Veteran does not currently meet the schedular requirements for a TDIU and has ongoing appeals regarding other contended disabilities. 38 C.F.R. § 4.16 (2017). As such, any decision regarding a TDIU would be premature. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record)." ORDER An initial evaluation of 20 percent, but no higher, is granted for the Veteran's chronic lumbar strain and left sacroiliac strain throughout the appeal period. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs