Citation Nr: 1754597 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-25 144A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to an increased rating for disc herniation at L3-L4, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Vample, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1980 to June 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2015, the Board remanded the issue of entitlement to an increased initial rating in excess of 10 percent for disc herniation at L3-L4 with right lumbar radiculopathy for further development. After further development, the issues on appeal are ready for adjudication. This appeal is comprised entirely of documents contained in the Virtual VA paperless claims processing system as well as the Veterans Benefits Management System (VBMS). Accordingly, any future documents should be incorporated in the Veteran's VBMS file. FINDINGS OF FACT 1. During the appeal period, the Veteran's lumbar spine disability has been characterized by pain and limitation of motion with forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. 2. During the appeal period, the Veteran's lumbar spine disability has not met the criteria for Intervertebral Disc Syndrome (IVDS). CONCLUSION OF LAW The criteria for establishing a rating of 20 percent, but no higher, for disc herniation at L3-L4 have been met. 38 U.S.C.§§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veteran's Claims Assistance Act VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice in letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records as well as VA examinations are associated with the claims file. The examiners reviewed the accurate history, considered lay statements, and provided clinical findings and diagnoses. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds that the VA examinations are sufficient, especially in light of the fact that the Veteran did not raise any argument regarding the impact of deficiencies in testing. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016); Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015), cert. denied, 137 S. Ct. 33, 196 L. Ed. 2d 25 (2016) ("A veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution."); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying the exhaustion doctrine to uphold the Court's determination not to consider a duty to assist argument that the veteran had not raised before the Board). There is no indication of additional existing evidence that is necessary for a fair adjudication of the claims that are the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Increased Ratings The Veteran is seeking an increased rating in excess of 10 percent, for a disc herniation at L3-L4. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2017). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Where evidence indicates that the degree of disability increased or decreased during appeal period following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran is presently service connected for disc herniation at L3-L4 with right lumbar radiculopathy. Throughout the period on appeal, he has been assigned a 10 percent disability rating under 38 C.F.R. § 4.71a, DC 5243. Ratings under this diagnostic code are assigned based on the General Rating Formula for Diseases of the Spine or based on incapacitating episodes, whichever results in the higher evaluation. Under these bases, A 20 percent evaluation is warranted when the evidence shows: * 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 evaluation is warranted when the evidence shows: * Forward flexion of the thoracolumbar spine to 30 degrees or less; * Favorable ankylosis of the entire thoracolumbar spine; or * Intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5242. The term "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. 38 C.F.R. § 4.71a, Note 2 (2017). In the alternative to the above schedular criteria, under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, ratings from 20 to a 60 percent can be assigned where there are incapacitating episodes due to intervertebral disc syndrome. 38 C.F.R. § 4.71a. DC 5243. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The General Formula directs raters that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a. Note 1. Based on a review of the evidence of record, the Board finds that a rating of 20 percent, but no higher is warranted. Specifically, The Veteran's April 2012 and August 2015 VA examination results did not show a limitation in forward flexion between 30 and 60 degrees. However, the Board notes that the Veteran experiences flare-ups which cause limitation of motion. The Veteran reported that he experiences episodes that are "really bad and he is unable to touch his toes". He further reported that he lives with chronic back pain and uses a TENs unit. Additionally, the Veteran reported that he experiences frequent flare ups that last up to two weeks and occur 3 to 4 times per year with a usual duration 5 to 7 days. In total the Veteran reported that he has missed 20 to 24 workdays in the past 12 months. Therefore an 20 percent rating is not warranted on this basis. However, a rating in excess of 20 percent is not rating. Specifically, at the VA examinations in April 2012 and August 2015, the Veteran never shows a limitation of flexion of 30 degrees or less, nor has he experience flare-ups so severe that a rating in excess of 20 percent would be warranted solely on this basis. Moreover, at no time has ankylosis of any sort been shown. Therefore, a rating in excess of 20 percent is not warranted on a schedular basis. The Board has considered the impact of functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07(1995). As noted above, the Veteran reported experiencing flare ups 3 to 4 times a year and missing between 20 to 24 workdays in the past 12 months. Furthermore, the August 2015 VA examiner opined that the Veterans' condition did impact his ability to work due to the pain he experiences with heavy lifting and physical work. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43(2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). The Board has additionally considered whether a higher rating would be warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5243(2017), under the formula for IVDS based on incapacitating episodes. The Veteran reported flare ups lasting from 5 to 7 days and occurring 3 to 4 times a year, as well as the loss of 20 to 24 workdays in the past 12 months. However, such periods do not meet the definition of incapacitating episodes under Diagnostic Code 5243. Furthermore, the Veteran's August 2015 VA examination revealed that he did not have IVDS at the time of examination and no incapacitating episodes were noted. Thus, the evidence of record demonstrates that the criteria for a rating increase under Diagnostic Code 5243 have not been met. When evaluating the extent of a Veteran's spine disability, the Board is required to consider whether a separate evaluation is warranted for any associated neurological abnormality including, but not limited to, bowel or bladder impairment, neurological impairment in the extremities or other such disorders, which are to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71(a), Note 1. In this regard, while the Veteran exhibited hypoactive reflexes in both of his knees and ankles at his August 2015 VA examination, the Veteran's neurological exam and muscle strength testing was normal. Additionally, no muscle atrophy was noted. Therefore, a separate evaluation is not warranted. Based on the foregoing, the Board concludes that the Veteran is entitled to an increased rating of 20 percent, but no more, for disc herniation at L3-L4. ORDER A 20 percent rating, but no more, for disc herniation at L3-L4, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs