Citation Nr: 1754032 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 11-22 324 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES Entitlement to an evaluation in excess of 20 percent for degenerative disc disease, herniated nucleus pulposus, and spinal meningeal cyst at L4-L5 (lower back disability) prior to August 27, 2010, and in excess of 40 percent thereafter. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. E. Griffith, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1996 to October 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied a rating in excess of 20 percent for a lower back disability. A February 2011 rating decision increased the rating for the low back disability from 20 percent to 40 percent, effective August 27, 2010. Additionally, the Veteran was rated 100 percent from January 15, 2011 through January 31, 2102 based on treatment requiring convalescence. See 38 CFR 4.30. The Board will not consider the period when the low back disability was assigned a temporary total rating. This case was remanded by the Board in August 2016 for an additional examination. For the reasons discussed below, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. Prior to August 27, 2010, the Veteran has flexion of the thoracolumbar spine greater than 30 degrees with no ankylosis, or incapacitating episodes. 2. Beginning August 27, 2010, the Veteran has flexion of the thoracolumbar spine limited to 30 degrees, but no ankylosis or incapacitating episodes. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for the lower back disability have not been met prior to August 27, 2010. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.59, 4.71a, Diagnostic Code (DC) 5243 (2017). 2. The criteria for a rating in excess of 40 percent for the lower back disability have not been met on or after August 27, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.59, 4.71a, Diagnostic Code (DC) 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with respect to 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). Increased Rating 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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. For disabilities evaluated on the basis of limitation of motion, VA is required to consider functional impairment. See 38 C.F.R. §§ 4.40, 4.45 (2017). The Court has instructed VA to obtain examinations that address weakened movement, excess fatigability, incoordination, and/or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59. Disabilities of the low back are rated under § 4.71a for the musculoskeletal system. The Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis of the lumbar spine or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also diagnostic code 5003); 5243 Intervertebral disc syndrome. Degenerative arthritis of the spine is Diagnostic Code 5242. Intervertebral disc syndrome is Diagnostic Code 5243. The general rating formula provides for the following disability ratings for diseases or injuries of the spine, 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. It applies to Diagnostic Codes 5235 to 5243 unless the disability rated under Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under the general rating formula for diseases and injuries of the spine, ratings are assigned, in pertinent part, as follows: * 20 percent - Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 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 * 40 percent - Forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; * 50 percent - Unfavorable ankylosis of the entire thoracolumbar spine; and * 100 percent - Unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) 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. 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 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 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. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 10 percent disability rating for disability with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent evaluation is in order. Finally, a maximum schedular rating of 60 percent is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). The Veteran is competent to report symptoms observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Board remanded this case to afford the Veteran an examination for his lower back disability, which took place in February 2017, and to obtain outstanding medical records. VA requested names and addresses of providers for any outstanding medical records and obtained updated VA treatment records. Accordingly, VA has substantially complied with the remand. See Stegall, 11 Vet. App. at 271. Increased Rating for Lower Back Disability Prior to August 27, 2010 The Veteran contends that his lower back disability is more severe than the 20 percent rating assigned prior to August 27, 2010. For the reasons below, the Board finds that an increased rating is not warranted. At the August 2009 VA examination, the Veteran complained of pain, weakness, stiffness, fatigue, lack of endurance, but denied swelling, heat, redness, instability, or true locking. He also complained of slight discomfort, with lateral flexion and extension, but not lateral rotation. The veteran estimated that he loses all forward flexion of his lumbar spine with the flare-up of pain because he avoids flexion until his treatment modality kicks in. However, range of motion testing requires the use of a goniometer and specialized training, and there is no indicating that the Veteran utilized a goniometer or has the requisite specialized training. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As such, the Board finds this estimate lacks competency as to the specific measurement; and thus, it lacks weight. In other words, the Board places much greater weight on the findings, as noted below, by the 2009 VA examiner due to the VA staff physician's competency gained from specialized training. At the August 2009 examination, range of motion of the thoracolumbar spine was from 0 to 110 degrees. Extension was from 0 to 40 degrees, bilateral lateral flexion was from 0 to 30, and bilateral lateral rotation was from 0 to 40 degrees. The examiner found no ankylosis of the spine. The examiner also noted DeLuca factors for the lumbar spine was a 0-degree loss of range of motion due to pain on repetitive use based on three repetitions. There were no objective findings of fatigability, weakness, lack of endurance, or incoordination of the veteran's lumbar spine. To be entitled to a rating greater than 20 percent under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran must have forward flexion of the cervical spine 15 degrees or less, ankylosis, or forward flexion of the thoracolumbar spine 30 degrees or less. Alternatively, a rating higher than 20 percent under the IVDS formula requires incapacitating episodes having a total duration of at least 4 weeks. The preponderance of competent evidence, to include the August 2009 VA examination report, does not show that the Veteran had forward flexion of 30 degrees or less, incapacitating episodes or ankylosis. Thus, the Veteran is not entitled to a rating of higher than 20 percent prior to August 27, 2010. 38 U.S.C. § 5107(b) (2012). Increased Rating for Lower Back Disability from August 27, 2010 The Veteran contends that his lower back disability is more severe than the 40 percent rating assigned from August 27, 2010. For the reasons below, the Board finds a rating higher than 40 percent is not warranted. In regard to the Veteran's lay statements, at the November 2011 VA examination, the Veteran reported severe pain, flare-ups, weakness, and fatigue. The Veteran reported incapacitating episodes, which the Diagnostic Code defines as bed rest prescribed by a physician, but as there is no reference in the record, such as the physician or length of time prescribed bed rest, it has little probative value. At the February 2017 VA examination, the Veteran reported pain with lifting and carrying heavy weight, walking for prolonged periods of time, and with twisting and bending over repeatedly. The Veteran underwent several examinations for his back disability during the relevant period. VA treatment records from November 2010 show the Veteran underwent a back examination. Thoracolumbar flexion was measured at 30 degrees without limitations, following repetitive use of 3 times. The examiner noted that the Veteran has had zero incapacitating episodes defined as a period of acute signs and symptoms due to intervertebral disk syndrome that required bed rest prescribed by a physician and treatment by a physician. The examiner also noted 0 degree additional loss of ROM due to pain on repetitive use and there was no true fatigability, weakness, lack of endurance, or incoordination of the lumbar spine. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); see also DeLuca v. Brown, 8 Vet. App. 202 (1995). At the November 2011 VA examination, the examiner noted thoracolumbar forward flexion was 30 degrees, both before repetitive testing and after. See Mitchell, 25 Vet. App. at 37; see also DeLuca, 8 Vet. App. at 202. At the February 2017 examination, the examiner noted the Veteran's back's forward flexion was 60 degrees, and observed no ankylosis or IVDS. The evidence does not show ankylosis of the spine or incapacitating episodes having a total duration of at least 6 weeks. Although the Veteran reported incapacitating episodes, the examiners' opinions are more probative in that regard, as there is no supporting evidence to corroborate any incapacitating episodes and the examiners are trained in VA's regulatory standards. Accordingly, the preponderance of the evidence is against a rating in excess of 40 percent from August 27, 2010 onward. 38 U.S.C. § 5107(b) (2012);38 C.F.R. § 4.3, 4.7 (2017). The Veteran could not receive a higher disability rating under any of the applicable Diagnostic Codes. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). ORDER A rating in excess of 20 percent for degenerative disc disease, herniated nucleus pulposus, and spinal meningeal cyst at L4-L5 prior to August 27, 2010 is denied. A rating in excess of 40 percent for degenerative disc disease, herniated nucleus pulposus, and spinal meningeal cyst at L4-L5 from August 27, 2010 is denied. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs