Citation Nr: 1752584 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-06 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to a disability rating in excess of 20 percent for a lumbar spine disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A-L Evans, Counsel INTRODUCTION The Veteran served on active duty, including periods from July 1975 to August 1979 and from October 1989 to June 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2012 rating decision of the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDING OF FACT The preponderance of the evidence shows that the Veteran's lumbar spine disability has not resulted in forward flexion of the thoracolumbar spine of 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, incapacitating episodes, or any associated objective neurological abnormalities. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014);38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). Here, the Veteran was provided VA medical examinations in August 2012, April 2014 and August 2015. The examinations are sufficient evidence for deciding the claim. The reports are adequate as they are based upon consideration of the Veteran's prior medical history and examinations, describe the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contain reasoned explanations. Thus, VA's duty to assist has been met. II. Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. See 38 C.F.R. § 4.7. 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). The Veteran's lumbar spine disability is evaluated as 20 percent disabling and has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 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 Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine (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. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for 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. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine to 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. 38 C.F.R. § 4.71a. "Ankylosis" is complete immobility of the joint in a fixed position, either favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992). The General Rating Formula also provides at Note (1) that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. 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 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 Plate V, 38 C.F.R. § 4.71a. Diagnostic Code 5243 provides that intervertebral disc syndrome is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The IVDS Formula provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with 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 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. Note (1) to Diagnostic Code 5243 provides that 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. The Board has reviewed all relevant evidence, with particular attention to the VA examinations from August 2012, April 2014, and August 2015. During the entire pendency of this appeal, the Veteran has not been shown to have any doctor-prescribed bedrest or ankylosis, and those symptoms pose no basis for an increase. As to limitation of motion, the only possible basis for an increase, taking into account DeLuca factors, would be flexion limited to 30 degrees. The rating schedule does not allow for a higher evaluation based upon limitation of any other motions. In terms of limitation of flexion, the report from the August 2012 VA examination revealed forward flexion of the lumbar spine was, at worst, to 45 degrees, to include pain. The report from the August 2015 VA examination revealed forward flexion of the lumbar spine to 80 degrees. While the April 2014 VA examination report shows that the Veteran's forward flexion of the lumbar spine was to 10 degrees, in the VA examiner's opinion, the Veteran had more lumbar spine range of motion than noted on his examination. The VA examiner noted that the Veteran's examination was inconsistent with the observations of the Veteran getting up from his chair and walking to the examination room. The Veteran had more lumbar flexion while getting up from the chain than while the VA examiner was examining him. Given the examiner's expressed doubts about the validity of the flexion finding in April 2014, the Board cannot conclude that this finding presents a basis for a higher evaluation. Accordingly, an evaluation in excess of 20 percent is not warranted on the basis of limitation of motion. Finally, separate ratings for radiculopathy or other objective neurological abnormalities are not for application. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, Note (1). Although VA treatment records dated in October 2014 and July 2015 note the Veteran's complaint of radiating pain in the right leg and left leg, respectively, and the August 2015 VA examination report shows that the Veteran reported that his left leg had been numb for the past 15 years from the lateral hip to the lateral knee, upon examination, the VA examiners in August 2012, April 2014 and August 2015 found no indication of objective evidence of radiculopathy. In addition, the August 2015 VA examiner stated that the report of numbness from the hip to the thigh was unlikely to be related to the Veteran's low back condition. Thus, no associated objective neurological abnormalities have been shown by the evidence such as to warrant a separate rating under Note 1. In summary, there is no basis for a rating in excess of 20 percent for the Veteran's lumbar spine disorder, and this claim must be denied. In reaching this determination, the Board notes that the United States Court of Appeals for Veterans Claims has held that entitlement to a total disability rating based on individual unemployability (TDIU) is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. The August 2012 VA examiner noted that the Veteran's job was light to sedentary in a video game store. The April 2014 and August 2015 VA examiners noted that the Veteran's condition did not impact his ability to work. As there is no evidence suggesting unemployability due to the Veteran's lumbar spine disability, the question of entitlement to TDIU is not raised. 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 (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 20 percent for a lumbar spine disability is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs