Citation Nr: 1752017 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-49 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for degenerative changes to the lumbosacral spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from July 2002 to July 2008. This matter comes before the Board of Veterans' Appeals (Board) from a January 2010 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection at a noncompensable (0 percent) rating. In a November 2010 rating decision, the RO increased the rating to 10 percent. The Veteran later testified before the undersigned Veterans Law Judge at a videoconference hearing in May 2013. A transcript is of record. This claim was previously before the Board in June 2014, at which time the Board remanded it for additional development. The RO subsequently increased the evaluation to 20 percent effective October 29, 2014. The claim was again before the Board in December 2016, at which time a 20 percent rating was granted as of July 16, 2008, the date service connection went into effect. The issue of entitlement to an evaluation greater than 20 percent is presently before the Board. FINDING OF FACT The Veteran's degenerative changes to the lumbosacral spine are not characterized by forward flexion of the lumbosacral spine being limited to 30 degrees or less. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 20 for degenerative changes to the lumbosacral spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326 (2017); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The claim arises from disagreement with the initial disability rating that was assigned following the grant of service connection. Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). With respect to the duty to assist in this case, the Veteran's service treatment records (STRs), private treatment records, and VA treatment records have been obtained and associated with the claims file. The Veteran was also provided with a VA examination in conjunction with his claim. Overall, the examiners provided well-reasoned rationales for the opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was scheduled for another VA examination in January 2017 but cancelled it and said he was no longer interested in pursuing his claim. The Veteran and his representative did not respond to a January 2017 letter regarding whether he wishes to withdraw his claim. Therefore, the Board will decide the claim based on the evidence of record. See 38 C.F.R. § 3.655 (2017). The Veteran and his representative have not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of these issues. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claims, the duty to assist has been fulfilled. II. Increased Ratings Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4 (2017). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155 (2017). The disability must be viewed in relation to its history. 38 C.F.R. § 4.1 (2017). A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7 (2017). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine 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 record does not show that the Veteran has had intervertebral disc syndrome. Therefore, Diagnostic Code 5243 is not applicable. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent disability rating is assigned 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 disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (2) provides that, 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 are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not specifically contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran complained of back pain at February 2008 private chiropractic treatment. There was less than 95 degrees forward flexion and less than 35 degrees extension in the thoracolumbar spine. The actual range of motion test results were not recorded. The Veteran had a VA examination in May 2009 at which he reported pain three or four days a week when he first gets up in the morning. He denied fatigue, spasms, weakness, decreased motion, numbness, paresthesias, leg or foot weakness, loss or bowel or bladder control, urgency, retention, obstipation, or erectile dysfunction. The back problems were exacerbated by standing greater than 10 minutes, bending over, or sitting or standing still for a long period. Walking or moving around alleviated the problems. On examination forward flexion for the thoracolumbar spine was to 115 degrees, extension to 35 degrees, right lateral flexion to 30 degrees, left lateral flexion to 35 degrees, and bilateral rotation to 40 degrees. On repetitive use testing, range of motion was forward flexion to 120 degrees, extension to 30 degrees, right lateral flexion to 35 degrees, left lateral flexion to 40 degrees, and bilateral rotation to 50 degrees. The examiner additionally noted normal strength in the Veteran's upper and lower extremities, normal posture and gait, and no evidence of painful motion, or associated neurological abnormalities. The Veteran had another VA examination in April 2010. The examiner noted a normal curvature of the Veteran's spine, and on examination ranges of motion were forward flexion to 105 degrees, extension to 30 degrees, left lateral flexion to 35 degrees, right lateral flexion to 25 degrees, and bilateral lateral rotation to 40 degrees, for a combined range of motion of 275 degrees. The Veteran's range of motion was then tested again after repetitive use without any resulting decrease. The examiner recorded normal strength in both lower extremities, made no record of any associated neurological abnormalities, and provided a diagnosis of degenerative disc disease. The Veteran complained of worsening low back pain at June 2011 VA treatment. In December 2012 the Veteran had another VA examination. He said that pain occurred two to three times a week, and he rated it as seven out of 10 in intensity. Range of motion was flexion to 90 degrees, extension to 25 degrees, right and left lateral flexion to 30 degrees, and left and right lateral rotation to 30 degrees. The combined range of motion was 235 degrees. There was no reduction of range of motion on repetitive use testing but there was some pain on movement. At the Board hearing in May 2013, the Veteran described daily back pain. VA treatment records show that the Veteran had physical therapy for his back. The Veteran had another VA examination in October 2014 at which he said that his symptoms had worsened. The back pain had become constant, and he had increased stiffness and pain in the mornings that lasted for one to two hours during which the low back felt swollen and hot. The pain increased with standing for 10 minutes, sitting for 50 minutes, or with other inactivity. The pain was improved with activity. On examination range of motion was forward flexion to 80 degrees, extension to 25 degrees, left and right lateral flexion to 30 degrees, and left and right lateral rotation to 30 degrees. The combined range of motion was 225 degrees. On repetitive use testing there was pain, and forward flexion was to 80 degrees, extension to 30 degrees, bilateral lateral flexion to 30 degrees, and bilateral lateral rotation to 30 degrees. There were spasms in the left and right paraspinal musculature at L2 and L3 as well as over the SI joints. The Veteran is not entitled to an evaluation in excess of 20 percent. At the Moy 2009 VA examination forward flexion of the thoracolumbar spine was to 115 degrees. It was to 105 degrees at the April 2010 VA examination, to 90 degrees at the December 2012 VA examination, and to 80 degrees at the October 2014 VA examination. The record does not reflect that forward flexion has been limited to 30 degrees or less, as is required for a 40 percent evaluation, the next highest available. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Board notes that in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA medical examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The January 2017 VA examination that the Veteran cancelled was to include joint testing on active and passive motion. Since the Veteran did not wish to reschedule the examination, the Board must decide the claim based on the evidence of record. See 38 C.F.R. § 3.655. Under 38 C.F.R. §§ 4.40 and 4.45, and the decision in DeLuca, the Board is required to consider the Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate disability evaluation for a disability using the limitation of motion diagnostic codes. While the record shows some flare-ups related to the back and consistent reports of pain, the currently assigned 20 percent evaluation contemplates this. In this regard, at the April 2010 and December 2012 examinations there was no change in motion after three repetitions due to pain, spasm, tenderness, or fatigue. At the May 2009 examination there was a 5 degree decrease in extension on repetitive use testing. The findings regarding range of motion on repetitive testing from the October 2014 VA examinations cannot be given probative value because of contradictory notations in the examination report. The testing showed no reduction in range of motion testing but the examiner indicated there was less movement than normal. The October 2014 examiner did note pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing on repetitive use. It was noted that flare-ups occurred every two to three weeks with increased pain and spasms for several days. The Veteran said that it felt like a fire in his low back that "moved up the spine." However, overall, the record does not show that the Veteran is entitled to an evaluation in excess of 20 percent for degenerative changes to the lumbosacral spine. Finally, the Board need not determine whether a total disability rating based on individual unemployability (TDIU) is warranted as set out in Rice v. Shinseki, 22 Vet. App. 447 (2009), since the Veteran has reported that he is working. At the December 2012 VA examination the Veteran said that he had missed no days of work in the past year. He managed a recreation center and had previously worked as a bike technician and as a customer service associate. The Veteran said at the October 2014 VA examination that he had left the job at the recreation center because it required him to sit for the majority of the day and that he was working as a driver for a landscaping company. He had lost three days of work for the past year due to back pain. While the record shows that there is some interference with this job due to service-connected disabilities, there is no cogent evidence of unemployability, and further consideration of a TDIU is not warranted. Finally, in light of the holding in Fenderson, supra, the Board has considered whether the Veteran is entitled to "staged" ratings for his service-connected degenerative changes to the lumbosacral spine, as the Court indicated can be done in this type of case. Based upon the record, we find that at no time during the claims period has the disability on appeal been more disabling than as currently rated under the present decision of the Board. ORDER An initial evaluation in excess of 20 percent for degenerative changes to the lumbosacral spine is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs