Citation Nr: 1752200	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  14-05 248	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for degenerative disc disease and osteoarthritis of the lumbosacral spine (low back disability), to include entitlement to separate evaluations for any associated neurological symptoms. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

R. Scarduzio, Associate Counsel
INTRODUCTION

The Veteran served on active duty from August 1985 to May 1988 and from September 2006 to February 2008, to include service in the Southwest Asia Theater of operations, as well as periods of Reserve service.  His awards and decorations include a Combat Action Badge and a Bronze Star, among others. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in May 2017.  A transcript of the hearing is of record. 


FINDING OF FACT

The Veteran's low back disability during the period on appeal has been manifested by, at worst, forward flexion to 80 degrees; incapacitating episodes of intervertebral disc syndrome or separately ratable associated neurological symptoms are not shown.


CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for degenerative disc disease and osteoarthritis of the lumbosacral spine have not been met.  38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017).





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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 (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017).  

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59.  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).  

All diseases and injuries of the spine other than intervertebral disc syndrome (IVDS) are to be evaluated under the General Rating Formula for the spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242.  Under the General Rating Formula, a 10 percent rating is assigned 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 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 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 disability rating is assigned for forward flexion of the thoracolumbar to 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability rating is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees.  38 C.F.R. § 4.71a, Code 5237, Note 2.  Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position.  Unfavorable ankylosis exists where the fixation is in flexion or extension.  Fixation of a spinal segment in neutral position (zero degrees) is considered favorable ankylosis.  See 38 C.F.R. § 4.71a, Code 5239, Note 5.

Alternatively, the Veteran's degenerative disc disease can be rated as IVDS, which is rated under Diagnostic Code 5243 and provides for a 40 percent disability rating for IVDS with 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 IVDS 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" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician."  38 C.F.R. § 4.71a, Code 5243, Formula for Rating IVDS Based on Incapacitating Episodes, Note 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 required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 4.3.

The evaluation of the same disability under various diagnoses is to be avoided, as this would constitute pyramiding.  See 38 C.F.R. § 4.14.  However, this does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

The Veteran's service-connected low back disability is rated under Diagnostic Code 5242, currently evaluated at 10 percent disabling, effective the date of his claim for service connection on July 13, 2011.  The Veteran asserted in his April 2012 notice of disagreement that the symptoms of his low back disability were worse than the rating assigned.  The Veteran has also asserted radicular pain in his lower extremity, including at his May 2017 hearing before the undersigned VLJ.  For the reasons that follow, the Board finds that a higher rating for the Veteran's low back disability, to include a separate evaluation for neurological symptoms, is not warranted.  

VA treatment records reflect a May 2011 MRI of the Veteran's lumbar spine.  The diagnosis was an L5-S1 left paramedian disc protrusion displacing the S1 nerve root sheath.  Left lower extremity radiculopathy, particularly in the Veteran's left hamstring area, was noted.  

Upon examination in March 2012, the Veteran reported severe low back pain with radiation to his left leg.  He also reported that pain was constant, with flare-ups at least every two-three days, and that he missed four working days during the previous six months due to back pain.  The Veteran denied flare-ups impacting functioning of the back.  Forward flexion was to 80 degrees and extension was to 25 degrees, with objective evidence of painful motion.  Right and left lateral flexion, as well as right and left lateral rotation, all exhibited full range of motion with no objective evidence of painful motion.  All range of motion results remained the same after repetitive use testing.  There was no evidence localized tenderness or pain to palpitation, muscle spasm, tenderness, guarding, weakness, muscle atrophy, or ankylosis.  Reflex and sensory testing were normal, and the Veteran did not report radicular pain or any other signs or symptoms of radiculopathy.  The examiner also noted a negative finding of IVDS.  Following the examination, the diagnosis was degenerative arthritis of the lumbar spine, confirmed by diagnostic reports, with no additional findings.  

Additional VA treatment records dated October 2013 and January 2015 note the Veteran's continued lower back pain, however, the Veteran denied any radicular symptoms or weakness.  February 2016 and March 2016 VA physical therapy records indicate improving lower back pain as a result of physical therapy exercises and posture improvement.     

The Veteran was afforded an additional VA examination in December 2016.  He reported low back pain of varying degrees depending on type of activity, with tightness and soreness typically in the morning after awakening.  Upon physical examination, the Veteran exhibited full range of motion on flexion, rotation, and lateral flexion, with extension limited to 20 degrees.  Pain was evidenced on flexion, extension, and right and left lateral flexion, and on weight bearing.  There was also localized tenderness in the mid to upper paraspinal area, and muscle spasms not resulting in abnormal gait or spinal contour were noted.  The Veteran was able to perform repetitive use testing with at least three repetitions, with no additional functional loss or range of motion.  However, the examiner also noted that additional limitations due to flare-ups or repeated use over time could not be determined without resorting to mere speculation.  Strength and reflex testing were normal.  The Veteran was not noted to have radicular pain or any other signs or symptoms of radiculopathy, nor was there any other neurological abnormalities noted.  He did not have IVDS or ankylosis of the spine.  While diagnostic imaging studies confirmed arthritis, no other significant test findings and/or results were noted.

After a careful review of the evidence, the Board finds that the criteria for more than a 10 percent rating for the Veteran's low back disability are not met.  Forward flexion upon VA examination in March 2012 was at no worse than 80 degrees, with full forward flexion exhibited in December 2016.  Moreover, muscle spasm or guarding was not shown to be severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  Thus, a disability rating of 20 percent is not warranted under Diagnostic Code 5242.  See 38 C.F.R. § 4.71a.  

As the Veteran has not been diagnosed with IVDS during the period on appeal, a higher rating for the service-connected back disorder under Diagnostic Code 5243 is also not warranted.  Id.  

The Board acknowledges the Veteran's report of radicular pain as a result of his low back disability - including VA treatment records noting radiculopathy of the left lower extremity in May 2011 - and has considered whether a separate rating could be assigned based on neurological symptomatology.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1).  However, during the subsequent VA examinations, sensory, reflex, and strength testing of the lower extremities were normal.  The examiners both noted no evidence of radiculopathy.  VA treatment records, also dated since the May 2011 MRI, note the Veteran denying radicular pain in the lower extremities.  No other neurological symptomatology associated with the lumbar spine disability is otherwise shown by the medical evidence during the period on appeal.  Thus, a separate rating is not warranted.  

In reaching this decision, the Board has considered the Veteran's lay statements, and notes that he is competent to report his own observations with regard to the severity of his disability.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  In this case the Veteran has stated his low back disability results in pain and limitations on standing, running, and getting in and out of vehicles.  The lay statements, however, do not indicate forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or that the combined range of motion of the thoracolumbar spine is 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, to include when considering the Veteran's description of flare-ups of pain.  To the extent he argues his symptomatology is more severe, his statements must be weighed against the other evidence of record.  Here, the specific examination findings of trained health care professionals are of greater probative weight than the Veteran's more general lay assertions.  

As the preponderance of the evidence is against a finding that the Veteran's disability more nearly approximates the criteria for a higher rating, a higher rating is not warranted.  38 C.F.R. §§ 4.3, 4.7, 4.71a.  

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, 28 Vet. App. 366, 369-370 (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

Entitlement to a disability rating in excess of 10 percent for degenerative disc disease and osteoarthritis of the lumbosacral spine, to include entitlement to separate evaluations for any associated neurological symptoms, is denied.



____________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs