Citation Nr: 1752741 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 09-38 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent disabling for low back strain from November 28, 2007. 2. Entitlement to an increased rating for posttraumatic stress disorder (PTSD) in excess of 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. McGoings, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1984 to February 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. A hearing has not been requested in this case. In January 2017, the Board remanded the low back claim for an additional examination. The Board finds substantial compliance with its remand instructions with respect to the claim for an increased rating for low back strain, so it may proceed to the merits of that claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The January 2017 remand also included a claim of entitlement to service connection for bilateral arthritis of the knees. In a March 2017 rating decision, the RO granted entitlement to service connection for bilateral arthritis of the knees and rated the condition as 10 percent disabling. There is no longer any pending adverse determination for the Board to adjudicate with respect to that claim. Because the RO resolved the matter in Appellant's favor, the claim is no longer on appeal and has not been listed as an Issue above. 38 U.S.C.A. § 7105 (d)(5). Finally, service connection was granted for PTSD in an October 2013 rating decision and the Veteran filed a timely notice of disagreement in July 2014. Where a notice of disagreement is filed but a statement of the case has not been issued, the Board must remand the claim to the RO to direct that a statement of the case be issued. See 38 C.F.R. § 19.9 (c); Manlincon v. West, 12 Vet. App. 238 (1999). FINDING OF FACT The Veteran's service-connected back disability was manifested by limitation of motion of the thoracolumbar spine of no worse than 60 degrees of forward flexion, pain with weight bearing, flare-ups, limited bending and lifting and requires the use of a back brace; however, no ankyloses of the spine or other neurologic abnormalities have been diagnosed. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for a low back strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a (Diagnostic Code 5237). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104 (d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The points below focus on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. The pertinent regulations (38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5237) were provided to the Veteran in the Statement of the Case/Supplemental Statements of the Case and will not be repeated here. Neither the Veteran nor her 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). Thus, the Board need not discuss any potential issues in this regard. The last supplemental statement of the case (SSOC) was issued in March 2017. Since that time, additional VA records have been associated with the claims file. However, no waiver of RO consideration or further SSOC is needed as these records are not relevant to the issue at hand. The VA records developed after March 2017 concern hospitalizations for alcohol abuse/detox, and contain no findings relevant to rating the back disability. Increased Rating, Low Back Strain After November 28, 2007 Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. If two disability ratings are potentially applicable, the higher rating 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. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Prior to November 28, 2007, the Veteran was in receipt of a 10 percent disability rating for her service-connected back disability. In January 2009 the Veteran filed a notice of disagreement with a July 2008 rating decision wherein the Veteran's back disability was increased from 10 to 20 percent disabling, effective November 28, 2007. The Veteran contends that her back disability has worsened and has caused her to miss time from work. The current 20 percent rating is warranted for a back disability with: * 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 (20 percent). In order to warrant a higher rating for the Veteran's back disability under DC 5237, evidence must show the following: * unfavorable ankylosis of the entire spine (100 percent); or * unfavorable ankylosis of the entire thoracolumbar spine (50 percent); or * unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (40 percent). [The criteria for a 30 percent rating concern cervical spine disabilities only, so this does not apply to rating the Veteran's lumbar spine condition.] In this case, the Board finds a higher rating for the Veteran's back disability is not warranted under DC 5237 for the following reasons. In April 2008, the Veteran had an imaging study performed during a compensation and pension examination. The x-rays revealed facet arthropathy bilaterally at L5-S1, no fracture or dislocation, and no canal stenosis. Flexion was noted as 0 to 90 degrees and extension 0 to 10 degrees with objective evidence of pain. In June 2011 the Veteran underwent a compensation and pension examination to assess her thoracolumbar spine. The Veteran's flexion was noted as 0 to 75 degrees, extension 0 to 30 degrees, with evidence of pain on active range of motion testing. There was no ankyloses of the spine, but the Veteran did walk with a limp and required the use of a cane. VA outpatient treatment records have also been associated with the claims file. A physical therapy note, dated July 2012, reveals the Veteran's lumbar flexion, active, as 100 percent with pain during, at end range, and on return and passive flexion as 100 percent. Lumbar extension was 100 percent with pain during, at end range, and on return with hinging at L5/S1. The physical therapist noted the Veteran's complaints of lower back pain with increasing episodes of pain radiating into her buttocks. A following physical examination, dated October 2012, notes that therapy had improved the Veteran's back condition and the Veteran described her pain as a three, whereas she rated the pain as a ten prior to physical therapy sessions. Medical records were also furnished by the social security administration (SSA). These records contain the statements of both examiners, as well as the Veteran, evidencing the Veteran's on-going lower back pain. These records do not, however, contain evidence that shows the worsening of the Veteran's back disability that would support an increased rating, as much of the evidence is duplicative of evidence already associated with the claims file. In February 2017 the Veteran was afforded a new compensation and pension examination. The examination revealed that the Veteran had forward flexion of 0 to 60 degrees and extension 0 to 15 degrees, both of which caused the Veteran pain. The Veteran was able to perform repetitive use testing without an additional loss of function or range of motion. It was also found that pain, weakness, fatigability or incoordination significantly limited her functional ability with repeated use over a period of time. The examiner also conducted range of motion testing with non-weight bearing, and passive range of motion was painful on flexion and extension, with flexion 0-70 degrees and extension 0-20 degrees. The examiner noted that no ankyloses was present upon examination and the Veteran did not have intervertebral disc syndrome (IVDS). In March 2017, the Veteran underwent physical therapy for a shoulder condition. Those records also note that observation of her posture showed lumbar lordosis, which is part of the criteria for the current 20 percent rating. A higher rating would require forward flexion of the thoracolumbar spine 30 degrees or less. Range of motion testing here has never shown the Veteran's forward flexion to be less than 60 degrees. Higher ratings for a spine disability are also available where there is some form of ankylosis, but VA examiners specifically indicated that the Veteran does not have ankylosis. The Board has considered whether the Veteran is entitled to separate neurological evaluations during the period on appeal. The Board notes that in July 2012 a physical therapist noted the Veteran had pain that radiated from her lower back into her buttocks region and suspected lumbar radiculopathy. However, to date, the Veteran has not been diagnosed with radiculopathy despite undergoing several examinations. A notation of "suspected" radiculopathy is not equivalent to an actual diagnosis. VA examinations done prior to this physical therapy note (2011) and afterwards (2017) have expressly found no radiculopathy or neurologic abnormalities or findings related to the thoracolumbar spine condition. Therefore, no separate rating can be assigned. The Veteran also has a diagnosis of urinary incontinence, but, a VA examiner concluded the condition is at least as likely as not due to and the result of the Veteran's total abdominal hysterectomy and bilateral salpingo-oopherectomy. The Veteran already receives a 40 percent rating for the secondary urinary incontinence. There is no suggestion in the record she has bowel issues as a result of her back condition. While the schedule for rating back disabilities specifically indicates that the range of motion criteria are to be applied "with or without symptoms such as pain..., stiffness, or aching", the Board must also assign the next higher rating if the symptoms and functional limitations more closely approximate the criteria for the higher rating. See 38 C.F.R. §§ 4.3 and 4.7; see also DeLuca, 8 Vet. App. at 206-07; 38 C.F.R. §§ 4.40, 4.45, and 4.59. Because the record contains range of motion measurements throughout the period that fail to meet the criteria for a higher rating, the Board finds that a rating in excess of 20 percent disabling is unwarranted. The Veteran claims her symptoms warrant a higher rating. However, in determining the actual degree of disability, contemporaneous medical records and an objective examination by a medical professional are more probative of the degree of the impairment than the Veteran's lay opinions. This is particularly so where the rating criteria require analysis of the clinical significance of medical symptoms, even if the existence of symptoms is observable by a layman. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012). The record also contains lay evidence submitted by the Veteran's family, this evidence has been weighed and considered by the Board in rendering its decision. The Veteran's family is competent to provide lay evidence as to symptomatology associated with the Veteran's back condition that they personally witness; however, neither the Veteran, nor her sisters, have demonstrated that they have the knowledge or skill to assess a complex medical condition that requires consideration and interpretation of clinical tests, X-rays or imaging studies, and an understanding of the musculoskeletal systems and related disorders. Accordingly, the lay evidence discussed above has been assigned less probative value than the objective medical evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). The Board has considered the benefit of the doubt doctrine, but finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 20 percent. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to a TDIU is potentially an element of all rating issues. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran was granted TDIU in a July 2015 rating decision, rendering further discussion of the issue moot. ORDER After November 28, 2007, a rating in excess of 20 percent for a low back disability is denied. REMAND In July 2014, the Veteran submitted a timely Notice of Disagreement with an October 2013 rating decision granting service connection for PTSD. A review of the record shows that the Veteran has not been furnished a new Statement of the Case. Because the notice of disagreement placed this in appellate status, the matter must be remanded for the originating agency to issue a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Accordingly, the case is REMANDED for the following action: The RO or AMC should provide the Veteran with a Statement of the Case as to the issue of an increased rating for PTSD. The Veteran should be informed that she must file a timely and adequate substantive appeal to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). If a timely substantive appeal is not filed, the claims should not be certified to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs