Citation Nr: 1752683 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 10-22 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE 1. Entitlement to an initial rating in excess of 10 percent for lumbosacral degenerative disc disease (hereafter "low back disability") prior to September 26, 2016. 2. Entitlement to a rating in excess of 20 percent for a low back disability effective September 26, 2016. REPRESENTATION Veteran represented by: Arizona Department of Veterans Services ATTORNEY FOR THE BOARD J. Fowler, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from December 1986 to June 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The March 2009 rating decision granted service connection for a low back disability and assigned an initial noncompensable rating. In an October 2016 rating decision, VA granted an initial 10 percent rating and increased the rating to 20 percent, effective September 26, 2016. When a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). In September 2014, February 2016, and March 2017, the Board remanded this issue so records could be obtained and the Veteran could be afforded VA examinations. These directives have been substantially completed. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that during the April 2017 VA examination, the Veteran's range of motion was not tested as the remand directed. The lack of testing does not warrant further remand, because the Veteran did not cooperate with the examination by refusing to test range of motion. A claimant has the responsibility to present and support a claim for benefits under laws administered by the VA, 38 U.S.C. § 5107(a). While VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). The issue is now before the Board for further appellate action. FINDINGS OF FACT 1. The Veteran's low back disability manifested, at worst, with flexion of 90 degrees and a combined range of motion of the thoracolumbar spine up to 235 degrees prior to September 26, 2016. 2. The Veteran's low back disability manifested, at worst, with flexion of 55 degrees and a combined range of motion of the thoracolumbar spine up to 175 degrees effective September 26, 2016. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for a low back disability prior to September 26, 2016 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a; Diagnostic Code 5242 (2017). 2. The criteria for entitlement to a rating in excess of 20 percent for a low back disability effective September 26, 2016 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a; Diagnostic Code 5242 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA's duty to notify was satisfied by a June 2008 letter. 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA must make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran has not identified any additional records that should be obtained prior to a Board decision. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran was provided multiple VA examinations. The examiners conducted a physical examination, reviewed the claims file, and discussed the severity of the Veteran's low back disability. Ardison v. Brown, 6 Vet. App. 405 (1994). All relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis 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. §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. 38 C.F.R. §4.7. Staged ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 20 percent rating is warranted when the 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, there is 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 when the forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankyloses of the entire thoracolumbar spine. To receive a rating of 50 or 100 percent, a Veteran must have unfavorable ankyloses of the entire thoracolumbar spine or the entire spine, respectively. 38 C.F.R. § 4.71a. VA considers forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, bilaterally, to be normal ranges of motion of the thoracolumbar spine. 38 C.F.R. § 4.71a at Note 2 and Plate V. The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula. When the rating of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors. Those factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80 (1997). The Veteran is entitled to at least the minimum compensable evaluation for motion that is accompanied by pain. 38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1 (2011). However, evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). At least the minimum compensable rating has been in effect for the entire rating period. Intervertebral disc syndrome (IVDS) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 (the combined rating table) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 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. As discussed below, the Veteran does not have IVDS and therefore this formula is not applicable. Prior to September 26, 2016 The Veteran's range of motion does not meet the schedular requirements for an initial rating in excess of 10 percent for a low back disability prior to September 26, 2016. During the October 2008 VA examination, the Veteran demonstrated forward flexion to 90 degrees and a combined range of motion of the thoracolumbar spine to 235 degrees with no objective evidence of painful motion or change following repetitive range of motion testing. During the December 2014 VA examination, the Veteran demonstrated forward flexion to 90 degrees and a combined range of motion of the thoracolumbar spine to 235 degrees with no objective evidence of painful motion or change after three repetitions. There were no findings of localized tenderness or pain on palpation of joints or soft tissue of the thoracolumbar spine, nor did the examiner find guarding, muscle spasms, or ankyloses of the spine. The examiner did not find the Veteran to have any other neurologic abnormalities, such as bowel or bladder problems/pathologic reflexes. Nor did the examiner find the Veteran to have IVDS. The VA examinations are consistent with private treatment records that detail on-going treatment for back pain, but do not contain range of motion measurements. The Veteran has received chiropractic treatments for his service-connected disability; however, the records are not competent to establish whether the criteria for an initial rating in excess of 10 percent prior to September 26, 2016 are met. Thus, the requirements for an initial disability rating in excess of 10 percent are not met. His forward flexion was normal at 90 degrees and his combined range of motion of the thoracolumbar spine was up to 235 degrees, representing a 5 degree loss of range of motion. At the 2008 VA examination, the Veteran reported intermittent aching, tightness, pressure across the middle of the entire lumbar spine, and the inability to lift more than 10 pounds without back pain. The Veteran reported mild and moderate pain for usual daily activities, but no significant effects on his occupation. He reported experiencing flare-ups three times per year that last for two to three days that manifest as muscle spasms of the spine with increased pain that limits his walking to a quarter of a mile with a severely slow forward leaning gait, the inability to bend, sit, or kneel without severe pain. At the December 2014 examination, the Veteran reported experiencing moderate to severe flare-ups that affect his gait, bending, turning, and twisting approximately three to four times a year that last for three to four days at a time. The Veteran also reported that his service connected disability impacts his ability to work, because he has to change positions periodically if he sits or stands for periods of time. The Veteran is competent to report low back symptoms and his reports are credible. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Veteran in this case is not competent to identify the specific level of his service-connected musculoskeletal disability according to the appropriate Diagnostic Codes and releveant rating criteria. See 38 C.F.R. § 4.46; Kahana v. Shinseki, 24 Vet. App. 428 (2011). He has not been shown by the evidence of record to have the training, skills, or experience needed to make such a determination. Such competent evidence concerning the nature and extent of the Veteran's disability has been provided in the medical evidence of record. As such, these records are more probative than the Veteran's subjective reported worsened symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Veteran's disability picture is not more closely approximated by an initial higher rating based on the presence of additional functional loss based on the criteria set forth in 38 C.F.R. §§ 4.40, 4.45, and the holdings in Deluca, 8 Vet. App. at 206. The evidence supports a finding that the functional equivalent of 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 is not shown prior to September 16, 2016. Such findings are not shown, even when considering the Veteran's reported symptomatology for the service-connected low back disability. The Veteran's reported symptomatology does not, when viewed in conjunction with the medical evidence, tend to establish additional limitations of motion to the degree that would warrant a rating in excess of 10 percent for the service-connected lumbosacral degenerative disc disease disability at any time prior to September 26, 2016 under 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. Reviewing the evidence, the Board finds that the overall disability picture for the Veteran's low back disability does not more closely approximate an initial disability rating in excess of 10 percent. 38 C.F.R. § 4.7. The preponderance of the evidence is against this claim. 38 C.F.R. § 4.3. Effective September 26, 2016 The Veteran's low back disability does not warrant a rating in excess of 20 percent effective September 26, 2016. At a September 2016 examination, the Veteran demonstrated forward flexion to 60 degrees and a combined range of motion of the thoracolumbar spine to 195 degrees with evidence of painful motion, pain with weight bearing, and objective evidence of mild localized tenderness to palpation of the lumbar spine with more pain on the right side. The Veteran demonstrated additional loss of range of motion after three repetitions. After three repetitions, the Veteran demonstrated forward flexion to 55 degrees and a combined range of motion of the thoracolumbar spine to 175 degrees. The examiner did not find that the Veteran had guarding, muscle spasms, or ankyloses of the spine. The examiner did not find the Veteran to have any other neurologic abnormalities, such as bowel or bladder problems/pathologic reflexes. Nor did the examiner find the Veteran to have IVDS. At an April 2017 VA examination, the Veteran refused to have his range of motion tested. Despite the lack of range of motion testing, the examiner observed that the Veteran was walking with a normal gait and had no areas of palpable tenderness. The examiner also found no symptoms of radiculopathy, ankyloses, other neurologic abnormalities, or IVDS. The Veteran's range of motion measurements meet the schedular requirements for a 20 percent disability rating, but no more. In the September 2016 VA examination, the Veteran reported flare-ups about two to three times a year that cause increased pain and decreased/limited mobility with sitting, bending, stooping, and changing positions. He reported the inability to do moderate to heavy lifting; pushing or pulling; running; jogging; prolonged walking, standing, sitting; and repetitive stair climbing. The Veteran reported that his service connected disability impacts his ability to work, because he is limited from doing moderate to heavy lifting; pushing or pulling; running; jogging; prolonged walking, standing, or sitting; repetitive stair climbing; and deep knee bending or squatting. In the April 2017 VA examination, the Veteran initially reported that his flare-ups cause pain, but does not limit his functioning. He reported his pain increasing from a two to an eight and lasting for four to five days at a time. On further questioning, the Veteran reported that when he experiences flare-ups, he cannot run, stretch, exercise, or sometimes work. He reported having flare-ups one to two times a year since the 1990s. The Veteran reports his service-connected disability has caused him to miss eight days of work in the past year due to having difficulty with prolonged sitting during a flare-up. In addition, the Veteran reports difficulty sleeping in a hotel bed during a flare-up. The Veteran is competent to report low back symptoms and his reports are credible. Layno, 6 Vet. App. at 470. However, as discussed above, the Veteran in this case is not competent to identify the specific level of his service-connected musculoskeletal disability according to the appropriate Diagnostic Codes and releveant rating criteria. See 38 C.F.R. § 4.46; Kahana, 24 Vet. App. 428. Such competent evidence concerning the nature and extent of the Veteran's disability has been provided in the medical evidence of record. As such, these records are more probative than the Veteran's subjective reported worsened symptomatology. See Cartright, 2 Vet. App. at 25 (1991). The Veteran's disability picture is not more closely approximated by a higher rating based on the presence of additional functional loss based on the criteria set forth in 38 C.F.R. §§ 4.40, 4.45, and the holdings in Deluca, 8 Vet. App. at 206. The evidence supports a finding that the functional equivalent of forward flexion of 30 degrees, or less, or favorable ankyloses of the entire thoracolumbar spine is not shown at any time during the initial appeal period. Such findings are not shown, even when considering the Veteran's reported symptomatology for the service-connected lumbosacral degenerative disc disease disability. The Veteran's reported symptomatology does not, when viewed in conjunction with the medical evidence, tend to establish additional limitations of motion to the degree that would warrant a rating in excess of 10 percent for the service-connected lumbosacral degenerative disc disease disability at any time between June 2, 2008 to September 25, 2016 under 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. Reviewing the evidence, the Board finds that the overall disability picture for the Veteran's low back disability does not more closely approximate a disability rating in excess of 20 percent beginning September 16, 2016. 38 C.F.R. § 4.7. The preponderance of the evidence is against this claim. 38 C.F.R. § 4.3. Finally, a total disability rating based on individual unemployability (TDIU) is not raised because the Veteran does not contend, and the evidence does not show, that his low back disability renders him unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009); Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). ORDER Entitlement to an initial rating in excess of 10 percent for a low back disability prior to September 26, 2016 is denied. Entitlement to a rating in excess of 20 percent for a low back disability effective September 26, 2016 is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs