Citation Nr: 1753555	
Decision Date: 11/22/17    Archive Date: 12/01/17

DOCKET NO. 14-04 683	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for low back strain.


REPRESENTATION

Veteran represented by:	David Russotto, Attorney


ATTORNEY FOR THE BOARD

P. Noh, Associate Counsel



INTRODUCTION

The Veteran had active military service from September 2005 to September 2009. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 


FINDINGS OF FACT

1. Prior to August 6, 2010, the Veteran's low back strain was manifested by forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; and exhibited no evidence of abnormal gait or abnormal spinal contour. 

2. From August 6, 2010 forward, the Veteran's low back strain has been manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, and has exhibited no evidence of ankylosis.


CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 10 percent for low back strain, prior to August 6, 2010, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.71a, Diagnostic Code 5237 (2017).

2. The criteria for a rating of 20 percent, but no higher, for low back strain, from August 6, 2010 forward, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.71a, Diagnostic Code 5237 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and to Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, and 5107; see also 38 C.F.R. §§ 3.102 and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits.

In this case, VA satisfied its duty to notify the Veteran by way of a July 2010 letter. The VCAA letter notified the Veteran of what information and evidence is needed to substantiate his claim, what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the types of evidence necessary to establish a disability rating and effective date. The Veteran received all essential notice, had a meaningful opportunity to participate in the development of his claim, and was not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Further, neither the Veteran, nor his representative, alleged prejudice with regard to notice. Accordingly, the VA satisfied its duty to notify. 

In regard to the duty to assist, the Board finds that VA adhered to its duty to assist by procuring all relevant records. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The evidence of record contains in-service treatment records, outpatient treatment records, military personnel records, and records from the Social Security Administration (SSA). No other relevant records have been identified and are outstanding. For the foregoing reasons, the Board concludes that VA's duty to assist in procuring all relevant records have been fulfilled with respect to the issue on appeal. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was afforded VA medical examinations in September 2009, August 2010, and March 2014. Based on the examinations and the records, VA medical examiners were able to provide adequate opinions. Accordingly, the Board determines that the VA's duty to provide a medical examination and to obtain a medical opinion has been satisfied. 

In conclusion, the Board finds that the duty to assist in this case is satisfied. 38 C.F.R. § 3.159(c)(4). Further, the Board finds the available medical evidence is sufficient for adequate determinations; and there has been substantial compliance with all pertinent VA law and regulations, as to not cause any prejudice to the Veteran.

II. Increased Rating for Low Back Strain

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That being said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. 

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2017). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. 

Under the General Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine 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, muscle spasm or guarding not severe enough to result in an abnormal gait or abnormal spinal contour. Id. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 170 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. 

Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id. at Note 2. 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 lateral rotation, with the normal combined range of motion of the thoracolumbar spine being 240 degrees. Id. 

Unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one of 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. Id. at Note 5. Fixation of a spinal segment in neutral position always represents favorable ankylosis. Id.

The Veteran contends that his low back strain is worse than currently rated. In his appeal, the Veteran stated that he would have constant pain throughout the day and unbearable pain when bending or stooping. 

Based on the evidence of record, the Board finds that the preponderance of the evidence supports a finding that a rating of 20 percent is warranted for the Veteran's low back strain as of August 6, 2010. During the appellate period, the Veteran complained of limited range of motion of the lumbar spine and pain on movement. The Board finds the Veteran's statements credible and competent, and therefore his statements are entitled to probative weight. Jandreau, 492 F.3d 1372. However, despite the Veteran's complaints of back pain, the records do not support an initial disability rating in excess of 10 percent prior to August 6, 2010. 

The Veteran was provided with VA examinations in September 2009, August 2010, and March 2014. In the September 2009 VA examination, the Veteran exhibited normal to mild limitation due to his lumbar strain. Specifically, the Veteran exhibited normal posture and gait, with no limitations on ambulation. The Veteran had unremarkable neurological findings, as his sensation, reflexes, and muscle strength were all normal. However, the Veteran did have muscle spasm, tenderness, and pain with motion. On examination, the Veteran had forward flexion to 70 degrees and extension to 30 degrees, with no additional loss of range of motion in all spheres after repetitive testing. There was no evidence of thoracolumbar spine ankylosis. The mild findings are consistent with the September 2009 x-ray scan of the lumbar spine that revealed no significant or acute bony normality. As such, the Board finds that the September 2009 VA examination is consistent with, and supported by, the treatment records. 

In the August 2010 VA examination, the Veteran's condition remained essentially the same since the September 2009 VA examination. The Veteran exhibited normal posture and gait. There was no evidence of ankylosis, scoliosis, muscle spasm, muscle atrophy, tenderness or weakness. On examination, the Veteran had forward flexion to 70 degrees, with pain at 70 degrees, and extension to 30 degrees, with no additional loss of range of motion in all spheres after repetitive testing. The Veteran complained of pain radiating into his legs, but neurological examination revealed normal reflexes, sensation, and muscle strength, and no neurological disability was diagnosed. 

In the March 2014 VA examination, the Veteran's low back condition appeared to have improved. On examination, the Veteran had forward flexion to 90 degrees or greater, with no objective evidence of painful motion, and extension to 30 degrees, with no additional loss of range of motion in all spheres after repetitive testing. There is no evidence of ankylosis of the spine. The neurological testing was unremarkable with normal muscle strength, reflexes, and sensation. However, the Veteran reported flare-ups, in which the examiner noted did not impact the function of his thoracolumbar spine. Further, the examiner noted that the Veteran's muscle spasm did not result in abnormal gait or abnormal spinal contour.  No complaints of radicular pain or other neurological symptoms were documented, and no neurological disabilities were diagnosed.

As for the Veteran's medical history, the treatment records show that at an August 6, 2010, treatment visit, the Veteran's treatment provider noted that the Veteran had flexion to 60 degrees and extension to 10 degrees. Additionally, the Veteran had decreased lumbar lordosis with diminished reflex on the right patellar tendon. These findings were repeated over a months-long course of physical therapy treatment. 

Based on the lay and medical evidence of record, the Board finds that the preponderance of the evidence supports a finding that a rating of 20 percent, but no higher, for the Veteran's low back strain is warranted as of August 6, 2010. The Board notes that the findings from the VA examination from September 2009 supports an initial rating of 10 percent, as the Veteran exhibited forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. However, the treatment records from the Veteran's August 2010 physical therapy treatment show the Veteran had flexion to 60 degrees and extension to 10 degrees as of August 6, 2010. Thus, the Board finds, in the light most favorable to the Veteran, a rating of 20 percent is warranted as of August 6, 2010. 

The Board further finds that the Veteran is not entitled to a rating in excess of 20 percent, as there is no evidence that the Veteran's back condition is manifested by forward flexion to 30 degrees or less, favorable ankylosis, or unfavorable ankylosis at any point during the appeal period. 38 C.F.R. § 4.71a, General Formula, Note 5. The fact that the Veteran has range of motion in his lumbar spine at all shows that ankylosis, for VA purposes, is not present. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). As such, an initial increased rating in excess of 10 percent prior to August 6, 2010, or in excess of 20 percent thereafter, is not warranted in this case. 38 C.F.R. § 4.71a, Diagnostic Code 5237.

In evaluating the Veteran's current level of disability, the Board has considered functional loss. 38 C.F.R. §§ 4.40, 4.45. The medical evidence shows that the Veteran has, at different times, complained of pain, flare-ups and limitation of motion, which the Veteran is competent to report. Jandreau, 492 F.3d 1372. The examiner also noted further loss of motion in directions other than forward flexion. However, these noted additional impairments are still fully contemplated by the 20 percent rating, which contemplates a limitation of forward flexion to between 30 and 60 degrees and combined range of motion less than 170 degrees. As such, the Board finds that any further loss of function due to flare-ups or other factors is fully contemplated by the currently assigned rating. 38 C.F.R. §§ 4.40, 4.45, 4.59.

Finally, with regard to objective neurological abnormalities associated with the Veteran's spine disability, the Board notes that, although he has on occasion reported radiation of pain into his lower extremities, no neurological diagnoses have been assigned at any point during the appeal period. Accordingly, a separate rating based on objective neurological abnormalities is not warranted.





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ORDER

Entitlement to an initial rating in excess of 10 percent for low back strain prior to August 6, 2010, is denied.

Entitlement to a rating of 20 percent for low back strain, from August 6, 2010 forward, is granted.



____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs