Citation Nr: 1754774	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  12-27 434A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an initial disability rating for degenerative disc disease of the lumbar spine, claimed as lower back condition, in excess of 20 percent prior to March 27, 2015, and in excess of 40 percent thereafter.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

E. Vample, Associate Counsel





INTRODUCTION

The Veteran served on active duty from January 1976 to January 1979 and from February 1979 to February 1982. 

This matter comes before the Board of Veteran's Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 

In June 2015, the RO increased the Veteran's rating to 40 percent, effective March 27, 2015.  Since the RO did not assign the maximum disability rating possible, the appeal for a higher disability rating remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993) (noting that where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).

This appeal is comprised of paper files, documents contained in the Virtual VA paperless claims processing system, and documents contained in the Veterans Benefits Management System (VBMS).  Accordingly, any future documents should be incorporated in the Veteran's VBMS file.


FINDINGS OF FACT

1. From September 30, 2010, to prior to March 27, 2015, the Veteran's spine disability has been characterized by forward flexion greater than 30 degrees but not greater than 60 degrees. 

2. From March 27, 2015, onwards the Veteran's spine disability has been characterized by forward flexion of 30 degrees or less, but not by ankylosis.


CONCLUSIONS OF LAW

1. Prior to March 27, 2015, the criteria for a rating in excess of 20 percent for degenerative disc disease of the lumbar spine, claimed as lower back condition, have not been met.  38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242 (2017).

2. From March 27, 2015, onwards, the criteria for a rating in excess of 40 percent for degenerative disc disease of the lumbar spine, claimed as lower back condition, have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242 (2017). 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Increased Ratings

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).


Degenerative Disc Disease of the Lumbar Spine 

The Veteran filed a claim seeking an increased rating for his service connected lower back condition.  Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.

The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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. §§ 4.10, 4.40, 4.45 (2017); see also DeLuca v. Brown, 8 Vet. App. 202 (1995).  The provisions of 38  C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. 

Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  Thus, actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint.  The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  See 38 C.F.R. § 4.59 (2017).

Prior to March 27, 2015, the Veteran received a 20 percent rating for his thoracolumbar spine disability under 38 C.F.R. § 4.71a, DC 5242 (addressing degenerative arthritis of the spine).  In June 2015, the RO increased the Veteran's lower back condition rating to 40 percent, effective March 27, 2015.  This diagnostic code applies a general rating formula that is applicable for most spine disabilities.  

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.

An "incapacitating episode" is "a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician."  38 C.F.R. § 4.71a, DCs 5237, 5243, Note 1 (2017).

Where entitlement to compensation has already 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).  Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Prior to March 27, 2015, the Board concludes that the Veteran would qualify for no more than a 20 percent rating.  During the Veteran's February 2011 VA examination, he reported experiencing low back pain with radiation mainly to his right leg and took ibuprofen for relief.  The Veteran exhibited forward flexion of 60 degrees, extension to 23 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. When conducting the testing, the examiner took into account painful and repetitive movements.  The Veteran exhibited no guarding or muscle spasms of the back as well as no ankylosis.  Furthermore, a May 2012 private examination revealed that the Veteran demonstrated improved posture and decreased antalgic gait.  Based on this testing, the Veteran would qualify for no more than a 20 percent rating based on forward flexion between 60 and 85 degrees as well as a combined range of motion of 193 degrees, which is between 120 and 235 degrees.

For the period since March 27, 2015, the Veteran's lower back condition is rated as 40 percent disabling.   However, a rating in excess of 40 percent is not warranted.  Specifically, during his March 2015 VA examination, the Veteran complained that his back condition became worse as time went by and that his pain is constant at an 8/10 on the pain scale.  The Veteran further stated that he is limited to house chores, uses a heating pad, and can walk up to fifty yards.  The VA examiner noted that the Veteran exhibited no guarding or muscle spasms of the back as well as no ankylosis.  As he exhibited a measureable range of motion and the examiner found no ankylosis, he cannot be considered for a rating based on ankylosis.  Based on this testing, the Veteran would qualify for no more than a 40 percent rating based on forward flexion to 30 degrees.

On an additional note, there is no evidence that he was prescribed periods of bedrest by a physician.  As a result, his disability cannot be considered under the rating criteria for intervertebral disc syndrome.

When considering these ratings, 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, 206-7 (1995).  In this case, while the Veteran complains of constant pain, the additional functional loss caused by the pain is taken into account for his range of motion measurements and severity of radicular symptoms.  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). Therefore, the Board finds that ratings in excess of 20 percent prior to March 27, 2015, an in excess of 40 percent since that date are not warranted.  

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 instance, the RO denied service connection for bilateral radiculopathy, lower extremities (claimed as a bilateral leg condition).  A December 1976 examination revealed lower back pain with no radiation of pain.  Additionally, the Veteran's service treatment records (STRs) did not reflect complaints or treatment for radiculopathy.  Furthermore, the Veteran's March 2011 and March 2015 VA examinations reveal no evidence of radiculopathy to his lower legs. 

After taking into account the Veteran's subjective complaints as well as his VA examinations, the Board concludes that an increased rating is not warranted.  

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.  


ORDER

From September 30, 2010, to prior to March 27, 2015, a rating in excess of 20 percent for degenerative disc disease of the lumbar spine, claimed as lower back condition, is denied.

From March 27, 2015, onwards, the criteria for a rating in excess of 40 percent for degenerative disc disease of the lumbar spine, claimed as lower back condition, is denied.



____________________________________________
B.T. KNOPE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs