Citation Nr: 1753537 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 10-38 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for lumbar spondylosis, status-post L5-S1 annular tear. 2. Entitlement to service connection for a right hip disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Kristy L Zadora, Senior Counsel INTRODUCTION The Veteran had active duty service from May 1987 to October 1987, from April 2003 to July 2003 and from August 2004 to January 2006. He also served in Iraq from October 2004 to August 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. A June 2017 Decision Review Officer decision assigned a 10 percent rating for lumbar spondylosis, effective February 1, 2006. However, as the Veteran was not granted the full benefit sought, the issue of an increased rating remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded). The issue of entitlement to service connection for a right hip disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT For the entire appeal period, the Veteran's lumbar spondylosis is manifested by subjective complaints of pain and limitation of motion, without limitation of the thoracolumbar spine to greater than 30 degrees but not greater than 60 degrees, or limitation of the combined range of motion of the thoracolumbar spine to not greater than 120 degrees; muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour; ankylosis; intervertebral disc syndrome resulting in incapacitating episodes; or associated neurological impairment of the bowel or bladder. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for lumbar spondylosis, status-post L5-S1 annular tear, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). With respect to the propriety of the assigned rating for the service-connected lumbar spondylosis, the Veteran has appealed from the original grant of benefits. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court of Appeals for Veterans Claims (Court) held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess/Hartman, supra. In this case, service connection was granted and an initial rating was assigned in the June 2007 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required as the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In the present case, the Board finds that all relevant facts have been properly developed and that all evidence necessary for the equitable resolution of the issue decided herein has been obtained. Specifically, the Veteran's service treatment records and service personnel records, as well as VA treatment records, have been obtained and considered. The Veteran has been afforded several VA examinations in conjunction with the claim for a higher rating decided herein, including those conducted in April 2006 and February 2017 provided to determine the severity of his lumbar spondylosis. Neither the Veteran nor his representative has alleged that these VA examinations are inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected lumbar spondylosis as they include interviews with the Veteran, a review of the record, and full examinations, addressing the relevant rating criteria. Moreover, neither the Veteran nor his representative has alleged that his lumbar spondylosis has worsened in severity since the last VA examination. Rather, with respect to such claim, they argue that the evidence reveals that this disability has been more severe than the currently assigned rating for the duration of the appeal period. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). Therefore, the Board finds that the examination of record is adequate to adjudicate the Veteran's claim for a higher rating and no further examination is necessary. The Board has considered the Court's holding in Correia v. McDonald, 28 Vet. App. 158 (2016), in which the proper interpretation of the final sentence of 38 C.F.R. § 4.59, which states "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged join," was addressed. In this regard, the Court concluded that VA examinations should include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In the instant case, the VA examinations included findings referable to range of motion testing after repetitive motions. With regard to conducting such testing with the range of the opposite undamaged joint, the record reflects that the Veteran's thoracolumbar range of motion was tested at the examinations; however, as there is no opposing undamaged joint, it is not possible to test that aspect. The Board further finds that the active motion testing conducted during the VA examinations in this case affords an accurate measurement of the most limited range of motion of the Veteran's thoracolumbar spine disability as passive range of motion testing tends to yield a less restrictive range of motion. Moreover, the February 2017 VA examination indicates that there was objective evidence of pain on passive range of motion testing and on non-weight bearing testing of the back. Despite any limitations of such testing and findings, the Board finds that it would not be prejudicial to the Veteran in proceeding with a decision at this time as the rating criteria fully contemplate limitation of motion, and the resulting functional impairment from such disability. Finally, neither the Veteran nor his representative has contended that the VA examinations of records are inadequate, nor have they otherwise argued that the Veteran's range of motion would have been further limited if tested in such capacities. As such, the Board need not address the matter further. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied. Thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Higher Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the appeal arises from the original assignment of a disability rating following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." 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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Here, the Veteran's lumbar spondylosis has been under the diagnostic code for degenerative arthritis. Degenerative arthritis is rated on the basis of limitation of motion. Under the General Rating Formula for Rating Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: a 10 percent rating is warranted if forward flexion of the thoracolumbar spine was 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 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 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. A 40 percent rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The criteria also include the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher rating. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran generally contends that a higher rating is warranted for his lumbar spondylosis. During an April 2006 VA examination, the Veteran reported lumbar stiffness and weakness. He reported difficulty with heavy lifting and bending and that he tires easily in a February 2017 VA examination report. The Veteran is currently in receipt of a 10 percent rating for his service-connected lumbar spondylosis. Although the Veteran has credibly reported lumbar spine pain, the evidence of record does not support a rating higher than 10 percent based on range of motion. Specifically, at no point during the appeal period has the Veteran's lumbar spondylosis been characterized by forward flexion of the thoracolumbar spine that is greater than 30 degrees but not greater than 60 degrees or that the combined range of motion of the thoracolumbar spine was not greater than 120 degrees, even in contemplation of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca, supra. Despite the Veteran's complaints, pain did not result in limitation of flexion to greater than 30 degrees but not greater than 60 degrees, or that the combined range of motion of the thoracolumbar spine was not greater than 120 degrees, at any time during the period on appeal. Flexion was found to be to 90 degrees during the April 2006 and February 2017 VA examinations. VA treatment notes dated in June 2014 and July 2014 indicate that lumbar flexion was "25 percent restricted" but did not provide specific range of motion measurements. Moreover, the Veteran denied flare-ups in the February 2017 VA examination report. Although pain may cause functional loss, pain itself does not constitute functional loss. Mitchell, supra. Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. Here, the VA treatment records and VA examinations do not reveal additional functional impairment, including additional limitation of motion, on account of pain, weakness, etc, that is not already contemplated by the assigned 10 percent rating. Burton, supra; 38 C.F.R. § 4.59. Thus, a higher rating is not warranted for the Veteran's lumbar spondylosis even in consideration of painful motion and other factors such as weakness, fatigability, lack of endurance, and incoordination. Moreover, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour were not found in either the April 2006 or February 2017 VA examination reports or in the clinical records. While the Veteran has been diagnosed with IVDS, Diagnostic Code 5243, contemplating IVDS, may not serve as a basis for a higher rating. This is because there is no indication that the Veteran's lumbar spondylosis has resulted in any incapacitating episodes as defined by VA regulations. A February 2017 VA examiner found that the Veteran had IVDS but also found that he did not have episodes of acute signs and symptoms that required bedrest prescribed by a physician and treatment by a physician in the past 12 months. Although the Veteran reported six days of incapacitation due to his lumbar spondylosis in an April 2006 VA examination, bedrest was not prescribed by a physician. As discussed above, the Rating Schedule defines an incapacitating episode is defined as a period of acute signs and symptoms due to IVDS requiring bed rest prescribed by a physician and treatment by a physician. See Note to 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Absent this indication, by definition, there have not been any incapacitating episodes. The Board notes spinal arthritis was found on X-ray in May 2014; however, such X-ray evidence of arthritis would not avail the Veteran of a higher rating. Although, as noted above, a 10 percent rating can be assigned for degenerative arthritis of the lumbar vertebrae resulting in either painful motion or non-compensable motion, that is only true when limitation of motion is non-compensable. As the Veteran has already been assigned rating for his lumbar spondylosis to compensate his for painful motion, a separate compensable disability cannot be awarded for arthritis. Pursuant to 38 C.F.R. § 4.45(f), the lumbar vertebrae are considered a group of minor joints that is ratable on a parity with a major joint. In addition to considering the orthopedic manifestations of a back disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. However, the Veteran has not alleged, and the evidence does not show, that he has bladder impairment or bowel impairment as a result of his service-connected lumbar spondylosis. A February 2014 VA examination found that the Veteran did not have any neurologic abnormalities related to the spine such as bowel or bladder problems. Moreover, an unappealed June 2017 Decision Review Officer decision awarded separate ratings for radiculopathy of the right and left lower extremities. Therefore, the Board finds that, at no time during the appeal period, has the Veteran's service-connected lumbar spondylosis resulted in neurological impairment of the bowel or bladder warranting an additional separate rating. The Board has considered whether a staged rating under Fenderson and Hart, supra, are appropriate for the Veteran's service-connected lumbar spondylosis; however, the Board finds that his symptomatology has been stable throughout this appeal period. Therefore, assigning a staged rating for such a disability is not warranted. 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). The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for a higher rating for his lumbar spondylosis for the entire appeal period. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert, supra. ORDER An initial rating in excess of 10 percent for lumbar spondylosis, status-post L5-S1 annular tear, is denied. REMAND A remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim for service connection for a right hip disorder so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has alleged that his current right hip pain had its onset during service, specifically during his service in Iraq. A June 2012 VA examiner found that the Veteran's right hip was normal on examination. However, the examiner did not consider whether the Veteran's right hip complaints were a manifestation of an undiagnosed illness or medically unexplained chronic multi-symptom illness. On remand, such an addendum opinion should be obtained. Finally, due to the length of time which will elapse on remand, updated VA treatment records dated from June 2017 to the present that are not already associated with the record should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include VA treatment records dated from June 2017 to the present should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford his representative an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After completing the above listed development and obtaining as much outstanding evidence as is available, then return the claims file, to include a copy of this remand, to the June 2012 VA examiner for an addendum opinion. If the examiner who drafted the June 2012 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner is asked to furnish an opinion with respect to the following question: With regards to the Veteran's reported right hip pain, is it a manifestation of an undiagnosed illness or medically unexplained chronic multi-symptom illness? The examiner should consider all of the evidence of record, including the Veteran's lay statements and medical records. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. 3. After completing the above actions, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs