Citation Nr: 1753450 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 10-08 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an increased rating in excess of 20 percent prior to July 2, 2013, and in excess of 40 percent thereafter for service-connected chronic strain of the thoracic and lumbar spine. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1988 to December 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO). In April 2013, the Board remanded the appeal so that the Veteran could be afforded a Board hearing. In July 2013, a Video Conference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In November 2013, the Board remanded the appeal for further development. In February 2014, the RO, in relevant part, granted an increase in the Veteran's chronic strain of the thoracic and lumbar spine to 40 percent disabling, effective July 2, 2013. In a July 2016 decision, the Board, in relevant part, granted a 100 percent rating for PTSD for the entire appeal period and granted a 20 percent rating, but no higher, prior to July 2, 2013, for the Veteran's chronic strain of the thoracic and lumbar spine. The Board also denied a rating in excess of 40 percent since July 2, 2013, for the Veteran's chronic strain of the lumbar spine. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2017 Order, the Court vacated the portion of the Board's decision that denied a rating in excess of 20 percent prior to July 2, 2013, and in excess of 40 percent thereafter for chronic strain of the thoracic and lumbar spine and remanded the issue pursuant to the recommendation of a contemporaneous Joint Motion for Remand (JMR). This appeal was processed using the Veterans Benefits Management System. A review of the Veteran's Legacy Content Manager Documents reveals VA treatment records dated April 2010 to July 2012, the July 2013 Board Hearing transcript and the January 2014 VA examination. FINDINGS OF FACT 1. Prior to July 2, 2013, the Veteran's chronic strain of thoracic and lumbar spine was manifest by forward flexion to at worst 65 degrees due to pain ; pain; spasms; trouble lying down, standing up and sitting; fatigue; decreased motion; weakness; less movement than normal; disturbance of locomotion; difficulty walking and immobility during flare-ups. 2. Since July 2, 2013, the Veteran's chronic strain of thoracic and lumbar spine has been manifest by forward flexion to at worse 30 degrees due to less movement than normal and pain on movement on repetitive testing; pain; spasms; trouble lying down, standing up and sitting; and immobility during flare-ups. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent prior to July 2, 2013, and in excess of 40 percent thereafter for chronic strain of thoracic and lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and assist pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. § 5103 (a) (2012); 38 C.F.R. § 3.159 (b) (2017). Here, neither the Veteran nor his representative has raised any issues with the duty to notify or 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). 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 the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing." The Veteran is in receipt of the highest rating possible based on range of motion. Additionally, in order for the Veteran to be entitled to a rating in excess of 40 percent, the Veteran must have ankylosis of the entire spine and as will be discussed below, there is no evidence that the Veteran has ankylosis. As such, the Board finds that an additional remand to address such criteria is not necessary. The Board also finds that the RO has substantially complied with the April 2013 and November 2013 Board remand directives which included, in relevant part, affording the Veteran a Board hearing and a new VA examination. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); see also Stegall v. West, 11 Vet. App. 268 (1998). Analysis The Veteran contends that his back disability is more severe than reflected in his current disability rating. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § Part 4 (2017). Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and 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). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran's back disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted for disability of the thoracolumbar spine when there is 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. An evaluation higher of 40 percent is not warranted unless there is forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 or greater requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243). Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note 2. Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, and incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. Id. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court also has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id. quoting 38 C.F.R. § 4.40. Turning to the evidence of record, in a December 2007 statement, the Veteran reported that his back had gotten worse. He reported that the pain in his back went from a 4 to a constant 10 on a pain meter. The Veteran reported that his pain went from being annoying to excruciating. He reported that his entire back would have periodic spasms. He reported that he was prescribed muscle relaxers and ibuprofen but he was still in a constant state of pain. He reported that he was taken to the emergency room to be checked after being unable to move for two days. He reported that he completed physical therapy three times a week. He reported that the doctor gave him a heating pad and a TENS unit. He reported that he still has pain, trouble laying in the bed and sitting down and standing up. He reported that the simplest task became hard for him such as sitting on the toilet, when his back is hurting or spasmodic. The Veteran reported that with this problem he is extremely limited by what he can do publicly, privately, actively and socially. The Veteran underwent a VA examination in January 2008 at the Montgomery, Alabama, VAMC. The Veteran presented with an appropriate gait and posture. He reported spasmodic and achy type pain to the left lower back on a daily basis that radiates to his buttocks and posterior right thigh. Treatment for his back condition includes a TENS unit, heating pads, and medication, and he had undergone a course of physical therapy in October 2007. The Veteran reported difficulty with prolonged standing and sitting, otherwise he had no functional loss. He reported flare ups twice per month that last roughly 15 minutes, at which time he has no functional use of this back. The Veteran reported a history of fatigue, decreased motion, weakness, and spasms. He did not report stiffness. He reported being able to walk more than a quarter of a mile but less than a mile. On objective examination of the thoracic spine, there was no evidence of spasm, atrophy, guarding, or weakness. With regard to the Mitchell issues, there were complaints of pain, less movement than normal, and disturbance in locomotion. The Veteran had tenderness and pain with motion. His posture, head position, and gait were all normal. There was no evidence of gibbus, kyphosis, list, lumbar flattening, lumbar lordosis, scoliosis, reverse lordosis, or ankylosis. On range of motion testing, the Veteran had both active and passive flexion to 90 degrees with pain beginning at 65 degrees, with no additional loss of motion on repetitive use. The Veteran had both active and passive range of motion extension to 30 degrees, with pain beginning at 25 degrees, and no additional loss of motion on repetitive use. The Veteran had both active and passive left and right lateral flexion to 30 degrees, with pain beginning at 25 degrees, and no additional loss of motion on repetitive use. The Veteran had both active and passive left and right lateral rotation to 30 degrees, with pain beginning at 25 degrees, and no additional loss of motion on repetitive use. A CT scan was reviewed which was essentially normal. The Veteran was diagnosed with chronic strain of the thoracic and lumbar spine. The effect on usual daily activities was severe for chores and exercise, moderate for shopping, recreation, traveling, dressing, and toileting, and it prevented participation in sports. As it related to bathing and grooming the effect was mild, and there was no effect on feeding. On his August 2008 notice of disagreement, the Veteran reported that his back has become more of a problem. He reported that it has proven to be more difficult to establish and maintain a normal life filled with activities of daily living. He reported that standing and sitting for a period of time causes excruciating pain in his lower back. He reported that he had to resign from several job positions that required lifting objects of 25 pounds or more due to back pains. He reported that his medication had been increased to 800mg of ibuprofen a day and muscle relaxer taken three times a day. He reported that this medication causes the Veteran to have severe headaches and he takes several naps during the course of the day. The Veteran reported that he has done rehab at the VA to no avail for back pain relief. VA treatment records dated August 2007 to July 2012 show that the Veteran was treated for back pain. In an October 2009 Montgomery VAMC visit the Veteran was seen for complaints of a muscle spasm in his lumbar spine. In an April 2010 New Orleans VAMC treatment note, it was noted the Veteran had a herniated disk, and had back pain longer than one month, in his lower back, with difficulty walking. He reported constant unremitting throbbing pain triggered by mobility. A New Orleans December 2011 treatment record notes the Veteran was seen in urgent care for right sided back pain. He was not working, and reported being disabled due to PTSD and back pain. The Veteran denied any numbness in his legs, or loss of bladder or bowel control. On his February 2010 VA Form 9 the Veteran reported that he takes ibuprofen and muscle relaxers three times a day. He reported that he goes to the VA to get shots to relieve the pain. He reported that rehab did not help his back or the pain. The Veteran reported that he still has problems getting out of the bed at times and at other times it is hard for him to stand. He reported that he has constant pain sitting and standing for a period of time. The Veteran reported that he has spams in his back. In a September 2012 statement, the Veteran reported that his low back is in constant pain. He reported that he resigned working at UPS over seven years ago because of it. The Veteran reported that the pain is in his lower back and hurts while he is sitting or lying down. He reported that he compensated by shifting his body to relieve the pain which leads to spasms in his upper back. The Veteran reported that he goes to his appointments, therapy, takes his medication, goes to the emergency room for additional relief, uses the TENS unit, a back brace and the heating pad to no avail. The Veteran reported that the pain hampers his daily living due to pain from prolonged sitting, laying and standing. At the July 2013 Board hearing, the Veteran testified that his back pain had worsened in nature. He reported that his treatment modalities thus far had been physical therapy, a back brace, a TENS unit, and pain medications. He reported having episodes where his back will seize, and he is unable to move. The Veteran reported going to the emergency room to receive shots in his buttocks for the pain. The Veteran reported that his symptoms had worsened since his last VA examination. He denied experiencing any neurological symptoms associated with his back. The Veteran underwent a VA examination in January 2014. The Veteran reported that the pain was now constant. He reported that it was a moderate throbbing in the low back area. He reported that it spreads to the right buttock and down the back of the right leg and foot as far as his toes on the side of the foot. The Veteran reported problems with prolonged sitting, lifting, or stooping down. There was numbness in the right leg. There was no loss of bowel or bladder control. The Veteran reported flare ups that impact the function of his spine, and he had been to the ER about four times per year because of severe pain that prevents him from moving. Range of motion testing revealed flexion to 35 degrees, with pain at 35 degrees, extension to 5 degrees with pain at 5 degrees, right lateral flexion to 10 degrees with pain at 10 degrees, left lateral flexion to 20 degrees with no evidence of painful motion, right lateral and left lateral rotation to 30 degrees with no evidence of painful motion. Following three repetitions range of motion was flexion to 30 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 20 degrees, right lateral and left lateral rotation to 30 degrees. After repetitive use, contributing factors to functional loss and functional impairment and additional limitation of range of motion of the spine after repetitive use was less movement than normal and pain on movement. The Veteran had increased paravertebral muscle tone in the left lumbar region, and muscle spasms that resulted in abnormal gait or abnormal spinal contour. The Veteran did not have any guarding of the thoracolumbar spine. There was no ankylosis of the spine. Sensory examination revealed the right lower extremity had decreased sensation to light touch testing, and straight leg raising test results were positive. The right lower extremity had moderate radiculopathy, and was described as sharp shooting pain from the low back to the buttocks, and down the right leg to the side of the right foot, involving the sciatic nerve. Sensory examination of the left lower extremity was normal, and straight leg raising test results were negative, and there was no evidence of radiculopathy. The Veteran did not have any other neurologic abnormalities or findings related to his spine, such as bowel or bladder problems, or pathologic reflexes. There was no evidence of intervertebral disc syndrome or incapacitating episodes. The Veteran has arthritis, but he does not have a thoracic vertebral fracture with loss of 50 percent or more of height. With regard to employment, pain was aggravated by sedentary and physical activities, such as prolonged sitting, walking, standing, or stooping. Based on the above, the Board finds that a rating in excess of 20 percent prior to July 2, 2013, and in excess of 40 percent thereafter is not warranted. The Board acknowledges the lay reports of symptoms prior to July 2, 2013, to include pain, spasms, fatigue, decreased motion, weakness, troubling lying down, standing and sitting, and difficulty walking. The Board notes that the Veteran was noted as having pain, less movement than normal and disturbance of locomotion. The Board also notes that the Veteran reported flare-ups twice a month for 15 minutes that resulted in no functional use of the back. The Board also acknowledges that since July 2, 2013, the Veteran has reported going to the emergency room for shots in his buttocks for pain and going to the emergency room four times a year due to pain that prevented movement. The Board also notes the Veteran's Board testimony that he has episodes of his back seizing where he is unable to move for 30 minutes at a time. The Board also acknowledges that the January 2014 VA examiner noted the Veteran's physical functioning was severely impaired during flare-ups. However, prior to July 2, 2013, the evidence is absent of any findings or notations of forward flexion to 30 degrees or less. Instead, prior to July 2, 2013, the Veteran's forward flexion of the lumbar spine was limited to at worst 65 degrees, with pain. Additionally, the evidence of record is against a finding that the Veteran has had ankylosis at any time during the appeal period. The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position). In this case, both the January 2008 and January 2014 VA examiner specifically found that the Veteran does not have ankylosis of the thoracolumbar spine. Crucially, in regard to evidence referenced by the JMR (all of which date or post-date July 2, 2013), the Veteran is already receiving the maximum disability rating for limitation of motion since July 2, 2013, so 38 C.F.R. §§ 4.40 and 4.45 are not applicable. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Veteran is in receipt of the maximum evaluation available for limitation of motion of the spine under the rating schedule. Also, a 40 percent rating is assigned for favorable ankylosis. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Thus, the 40 percent rating contemplates episodes in which the Veteran believes his disability is so severe that he cannot move his back. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Board does not find that the medical evidence and the Veteran's description of the functional impairment he experiences during such flare-ups demonstrates the level of disability associated with unfavorable ankylosis of the thoracolumbar spine, which is the criteria associated with the next higher rating of 50 percent. As such, the Board finds the Veteran's symptoms and functional limitations do not more closely approximate a rating in excess of 20 percent prior to July 2, 2013, or in excess of 40 percent at any time during the appeal period. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). The Board has also considered whether a higher evaluation may be warranted due to incapacitating episodes associated with intervertebral disc syndrome. However, the lay and medical evidence of record is against a finding that the Veteran has had incapacitating episodes of at least four weeks during the past 12 months necessitating bed rest prescribed by a physician. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 6. The Board has also considered whether the Veteran is entitled to separate ratings for associated objective neurological abnormalities. However, the Veteran has already been granted service connection for radiculopathy of the right lower extremity associated with chronic strain of the thoracic and lumbar spine. Additionally, no other abnormalities have been found. Therefore, further consideration of separate ratings is not warranted. The Board recognizes that the Veteran sincerely believes that he is entitled to a higher rating. However, the Veteran's lay evidence regarding his symptoms is outweighed by the competent and credible medical evidence that evaluates the true extent of impairment due to his back disability based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners and treating medical professionals have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. Additionally, 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). Finally, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. Here, however, the issue of entitlement to TDIU is moot as the Veteran is in receipt of a combined evaluation of 100 percent for the entire appeal period. Moreover, the lay and medical evidence shows that the Veteran's service connected disabilities collectively render him unable to secure or follow a substantially gainful occupation, and that his service connected psychiatric disability (rated 100 percent disabling effective September 7, 2007) singularly renders him unable to secure or follow a substantially gainful occupation. Thus, there are no concerns under Bradley v. Peake, 22 Vet. App. 280 (2008). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a rating in excess of 20 percent prior to July 2, 2013, and in excess of 40 percent thereafter for service-connected chronic strain of thoracic and lumbar spine is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs