Citation Nr: 1751390 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 15-36 958 DATE Advanced on the Docket THE ISSUE Entitlement to an initial compensable evaluation for service-connected old lumbar compression fracture L1, L3. ORDER Entitlement to an initial compensable evaluation for service-connected old lumbar compression fracture L1, L3, is denied. FINDING OF FACT Throughout the appeal period, the Veteran's service-connected old lumbar compression fracture at L1 and L3 did not result in forward flexion of the thoracolumbar spine less than 85 degrees; or, combined range of motion of the thoracolumbar spine less 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. CONCLUSION OF LAW The criteria for a compensable evaluation for service-connected old lumbar compression fracture, L1, L3, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 5235 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1954 to November 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO), granting service connection for old lumbar compression fracture L1, L3, assigning a noncompensable disability rating effective October 31, 2013. In September 2017, the Veteran withdrew his request for a Board hearing. This appeal was processed using the Virtual VA (VVA) and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future review of this Veteran's case should take into consideration the existence of these electronic records. Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). Veterans Claims Assistance Act of 2000 As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159(b) (2017). The Veteran has not 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). As such, the Board will now review the merits of the Veteran's claim. Law and Analysis The Veteran essentially contends that his service-connected old lumbar compression fracture is more disabling than contemplated by the initial noncompensable rating. Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran's symptoms to the criteria in the rating schedule. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2017). Disability evaluations are determined by assessing the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2 (2017). If there is a question as to which evaluation should be applied to the veteran's disability, 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 (2017). The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran's disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. Fenderson v. West, 12 Vet. App, 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran's lumbar strain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5235 (2017). 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 portrays the anatomical damage and the functional loss. 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 absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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 (2017). Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45 (2017). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2017). Under the General Rating Formula for Diseases and Injuries of the Spine, ratings for the thoracolumbar spine are assigned as follows: A 10 percent rating is warranted for 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. A 20 percent 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Additional notes are as follows: 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 cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2017). Per Note (6), intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table) (2017). The Formula for Rating IVDS Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months warrants a 10 percent evaluation. A 20 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, General Rating Formula, Diagnostic Code 5243 (2017). The Formula for Rating IVDS has the following notes: Note (1): For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If IVDS is present in more than one spinal segment, provided that the affects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Concerning the range of motion findings of the joint at issue, the Board notes that the VA examination reports do not include passive range of motion and do not specify range of motion with and without weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). The fundamental issue for Correia is that VA examinations perform adequate joint testing for pain. Generally, active range of motion testing produces more restrictive results than passive range of motion testing, in that passive range of motion testing requires the physician to force the joint through its motions. Moreover, there is no indication on the VA examinations of record that range of motion testing was performed other than on weight bearing. Therefore, there is no prejudice to the Veteran in relying on the VA examinations that involved active range of motion testing because such results tend to produce the "worst case scenario" of impairment and thus would tend to support the highest possible rating. In making determinations, VA is responsible for ascertaining 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 the claim is denied. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim. In an April 2014 statement, the Veteran related that he used to be able to work six hours a day as a handyman but because of his back he was reduced to being able to work only one to one-and-a-half hours. He then had to take two pain pills and lay down for one to three hours. In an April 2014 statement, the Veteran's wife related that the Veteran suffers from his back problem every day. She stated that, every day, the Veteran had to take pain pills and rest in bed for long periods. She stated that the Veteran had been going downhill for the last five years. In an April 2014 statement, friends of twenty-five years of the Veteran stated that he had to rest often and lie on his back in bed a few hours due to pain as well as take pain medication. The back pain also prevented the Veteran from sitting or standing too long. The Veteran, his wife, and friends are competent to report that which they have perceived through the use of their senses, including the occurrence of pain. See 38 C.F.R. § 3.159(a)(2) (2017); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses). They are not, however, competent to state whether the Veteran's symptoms warrant a specific rating under the schedule for rating disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran was afforded a VA examination in August 2014, which included an in-person examination and complete review of the Veteran's claims file. The Veteran was diagnosed as having degenerative disc disease of the lumbar spine and old lumbar compression fractures at L1 and L3. It was noted that the Veteran wore a back brace at all times except when lying down to aid stability and pain. The brace was worn during testing to prevent further injury and, as a result, the brace limited the Veteran's lateral flexion and lateral rotation ranges of motion. Initial range of motion testing of the thoracolumbar spine yielded the following results: forward flexion was to 80 degrees with pain at 80 degrees; extension was to 10 degrees with pain at 10 degrees; right lateral flexion was to 5 degrees with pain at 5 degrees; left lateral flexion was to 5 degrees with pain at 5 degrees; right rotation was to 10 degrees with pain at 10 degrees; and left lateral rotation was to 10 degrees with pain at 10 degrees. Because the Veteran was having increasing pain and was becoming unsteady due to other unrelated medical issues, it was medically contraindicated to do repetitive use testing. Functional loss of the thoracolumbar spine was noted as being: less movement than normal; weakened movement; incoordination, impaired ability to execute skilled movements smoothly; pain on movement; instability of station; disturbance of locomotion; interference with sitting, standing, and/or weight bearing. It was recorded that the Veteran did not have localized tenderness to palpation; muscle spasms; or guarding. Muscle strength was recorded as 4/5 bilaterally; there was no muscle atrophy; deep tendon reflexes and sensory examination were normal; straight leg raising test was negative bilaterally. The Veteran did not have radiculopathy or ankylosis of the spine. It was recorded that the Veteran did not have IVDS. The presence of arthritis was confirmed by imaging. The impression was: slight anterior wedging of L1 and L3 bodies, due to old compression fractures; no herniated disc, spinal stenosis, or neuroforaminal narrowing; diffuse mild degenerative disc disease, and facet arthropathy more prominent in the lower lumbar spine as described. The examiner remarked that compression fractures heal and once healed the associated pain resolves, and the examiner found this to be consistent with the Veteran's given history that he had no significant back pain following service until about seven to eight years ago. The examiner, therefore, found the positive findings on the examination and complaints of constant back pain to be attributable to the degenerative disc disease of the lumbar spine and not to the old compression fractures. It was also the examiner's opinion that the Veteran's diffuse mild degenerative disc disease of the lumbar spine was the result of aging rather than the compression fractures because, if it was the result of the fractures, it would have been more advanced than it was. The Veteran was afforded a VA examination in May 2017, during which the Veteran was unable to perform the initial range of motion testing due to recent hospitalization for unrelated medical conditions. The examiner did a careful review of the Veteran's claims file and concurred with the August 2014 VA examination medical opinion, stating that there was no current limitation of motion due to the old L1L3 compression fractures. Rather, the Veteran's range of motion limitations and pain were due to degenerative disc disease; the degenerative disc disease was due to aging. A website citation was provided. The examiner specifically noted that the pain experienced during the examination was in the same location as the degenerative disc disease. The examiner noted that the compression deformity was an incidental finding on MRI. In support of the conclusion, the examiner drew attention to a February 2011 report of a complete physical examination for primary care during which the back examination was normal, and there was no back pain reported. (CAPRI, Aug. 18, 2016.) It was reported that the musculoskeletal posture was straight without kyphosis; gait was smooth and uninterrupted; neurologic exam was normal; there was active range of motion without pain or limitation; there was no pain on palpation down the spinous processes. It was noted at that time that the Veteran walked with a cane due to recent knee surgery. The examiner noted that the Veteran's medical records show that he presented to the emergency room in April 2011, complaining of bilateral lower back pain. The examiner opined that this was the start of the Veteran's current chronic lower back pain problem. The Board notes that in June 2017, after this examination, VA received medical records from Dr. L.B.P. showing that, in February 2009, the Veteran presented with a complaint of back pain in the L2-3 region that had sudden onset. Based on a careful review of the foregoing, the Board finds that a compensable evaluation is not warranted at any time during the appeal period. While the Veteran's range of motion testing in August 2014 would warrant a higher rating, both VA medical examiners opined that the Veteran's pain and limited range of motion was caused by degenerative disc disease, not his service-connected old lumbar compression fracture. Both examiners also opined that the Veteran's degenerative disc disease was the result of aging, not his service-connected old lumbar compression fracture. In support of their rationales, the examiners cited to specifics in the Veteran's medical records and history to show that the symptomatology of the two diagnoses could be distinguished, and the Board affords these well-reasoned medical opinions great probative weight. Cf. Mittleider v. West, 11 Vet. App. 18 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so, but may not disregard such evidence of differentiation in the record); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-04 (2008). Accordingly, because the Veteran does not have any measurable disability that is attributable to his service-connected old lumbar compression fracture, a compensable evaluation is not warranted. The Board acknowledges the Veteran's statements and medical records concerning chronic low back pain. While the Board does not question the Veteran's disability due to pain and resulting limitation in range of motion, the Board finds the objective medical opinions as to the cause of the pain and limitation in range of motion more probative. See 38 C.F.R. § 3.159(a)(1), 4.2 (2017); Layno, 6 Vet. App. at 469. Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C.A. §§ 501, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). ______________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Counsel Copy mailed to: Virginia Department of Veteran Services Department of Veterans Affairs