Citation Nr: 1754874 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 13-28 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for lumbar strain, prior to April 27, 2015. 2. Entitlement to a rating in excess of 40 percent for lumbar strain, from April 27, 2015. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Y. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from May 2009 to June 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which awarded service connection for lumbar strain and assigned a 10 percent disability rating, effective as of May 10, 2012. In April 2015, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In June 2015, the Board remanded the instant issues on appeal for further evidentiary development. A review of the record reflects substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is now again before the Board. In October 2015, the RO issued a rating decision which increased the Veteran's evaluation for lumbar strain to 40 percent disabling, effective as of April 27, 2015. When a Veteran seeks an increased rating, it is generally presumed that the maximum benefit allowed is sought, and a claim remains in controversy where less than the maximum benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). As such, the issue has been characterized accordingly above. During the pendency of the appeal, the Veteran, through his representative, has alleged that his service connected lumbar spine disability causes him to experience limitations at work. However, neither the Veteran nor the evidence of record suggests he is unemployable as a result of this service connected disability. To the contrary, the Veteran has reported he continued to be employed by Pfizer in a sedentary position. Accordingly, the Board concludes that the issue of entitlement to a total disability evaluation due to individual unemployability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009). FINDINGS OF FACT 1. For the period prior to April 27, 2015, the Veteran's lumbar strain has been manifested by painful motion, with limitation of forward flexion of, at worst, 80 degrees, but has not been manifested by forward flexion of 60 degrees or less, or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. 2. At no point has the Veteran been observed to have unfavorable ankylosis of the lumbar spine or been observed to have such a restricted range of motion that is approximate to ankylosis. CONCLUSIONS OF LAW 1. For the period prior to April 27, 2015, the criteria for an evaluation in excess of a 10 percent rating for lumbar strain have not been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5243 (2017). 2. For the period from April 27, 2015, the criteria for an evaluation in excess of a 40 percent rating for lumbar strain have not been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties VA has completed the necessary steps in order to meet its duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. 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) (2016). The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA sent VCAA letters to the Veteran, he was afforded multiple VA examinations, and his in-service and post-service medical records were obtained. The examinations and opinions, taken together, are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified any additional outstanding evidence which could be obtained to substantiate his claim, and the Board is unaware of any such evidence. Therefore, the Board finds that the duties to notify and assist have been met. Lastly, the record reflects substantial compliance with the Board's June 2015 Remand. See Stegall, 11 Vet. App. 268, 271 (1998). These directives were adequately followed; thus, the Board finds substantial compliance has been shown. II. Increased Schedular Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C.A. § 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 claimant. 38 C.F.R. § 4.3. In accordance with 38 C.F.R. §§ 4.1, 4.2 (2016) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Board notes that where entitlement to compensation has already been established and an increase in the disability rating is at issue, as is the case with the Veteran's back disability, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2 (2016); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2016). Section 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA must consider all favorable lay evidence of record. 38 U.S.C.A. § 5107 (b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Veteran contends that he is entitled to an increased rating for his lumbar spine disability. Disabilities of the spine are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. The Veteran's lumbar spine disability has been evaluated as 10 percent disabling prior to April 27, 2015, and 40 percent disabling thereafter under Diagnostic Code 5237, for lumbosacral strain. As an initial matter, the Board notes that a lumbar spine disability may be rated under multiple diagnostic codes. However, the Board finds the General Rating Formula for the spine provides the most potential for a favorable rating. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Here, the evidence does not show any incapacitating episodes requiring physician prescribed bedrest. As such, Diagnostic Code 5243 is not for application in the instant appeal. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), 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. An evaluation of 10 percent is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or if there is a vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 evaluation is warranted if forward flexion of the thoracolumbar spine is limited to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. Id. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees; extension is 0 to 30 degrees; left and right lateral flexion and rotation are 0 to 30 degrees. Any associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Formula, Note 1. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992) (memorandum decision); Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Ankylosis has also been defined as stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. 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. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id.; see also 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. Consideration of a higher rating for functional loss, to include during flare ups, due to these factors is warranted for Diagnostic Codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain indeed must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. On VA examination in May 2013, the Veteran's medical history was reviewed. The examiner provided a diagnosis of lumbar strain. Range of motion testing revealed flexion to 80 degrees, with pain at 60 degrees; extension to 15 degrees, with no objective evidence of pain; right and left lateral flexion to 20 degrees bilaterally, with pain at 15 degrees bilaterally; right and left lateral rotation to 20 degrees bilaterally, with pain at 15 degrees bilaterally; for a combined range of motion of 175 degrees. Upon repetitive range of motion testing, there was no additional loss of range of motion. The examination also revealed no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. There was no guarding or muscle spasm. On VA examination in September 2014, the Veteran's medical history was reviewed again. Range of motion testing revealed forward flexion to 80 degrees, with pain at 45 degrees; extension to 20 degrees, with pain at 10 degrees; right and left lateral flexion to 25 degrees bilaterally, with pain at 25 degrees bilaterally; and right and left lateral rotation to 30 degrees bilaterally, with pain at 20 degrees bilaterally; for a combined range of motion of 210 degrees. Upon repetitive range of motion testing, there was no additional loss of range of motion. The examination also revealed no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. There was no guarding or muscle spasm. The examiner also noted that there was no ankylosis of the spine. On VA examination in October 2015, the examiner provided diagnoses of lumbar strain and SI dysfunction. Range of motion testing revealed forward flexion to 30 degrees; extension to 20 degrees; right and left lateral flexion to 20 degrees; and right and left lateral rotation to 20 degrees; for a combined range of motion of 130 degrees. The examiner reported that the Veteran experienced pain throughout range of motion testing. The examiner also noted that range of motion of the lumbar spine was abnormal, but that it did not contribute to functional loss. There was no evidence of pain on weight-bearing; however, there was evidence of pain of localized tenderness or pain on palpation of the joints. Upon repetitive range of motion testing, there was no additional loss of range of motion. There was evidence of muscle spasm, but no evidence of guarding. There was no evidence of radiculopathy or any other neurological abnormality or findings related to the thoracolumbar spine, to include the bowel and bladder symptoms. There was no evidence of ankylosis of the spine. For the period on appeal prior to April 27, 2015, the above evidence shows that the Veteran's forward flexion has been limited to 80 degrees. In addition, there was no evidence of record of additional limitation of range of motion upon repetitive motion testing. There is no evidence of ankylosis, such that a 50 or 100 percent evaluation would be warranted. The evidence does not show that the Veteran has ever experienced forward flexion of the thoracolumbar spine that was limited to 60 degrees or less, nor has the evidence indicated the Veteran's combined range of motion has ever been reduced to 120 degrees or less. Moreover, there was no evidence of guarding or spasm. Therefore, neither a 20 nor 40 percent evaluation is warranted for the period prior to April 27, 2015. For the period on appeal from April 27, 2015, the Board finds no evidence which would support the assignment of an increased evaluation, in excess of the presently assigned 40 percent for the Veteran's lumbar spine disability. Specifically, the Board finds no evidence which would suggest the Veteran has been diagnosed with ankylosis of his lumbar or thoracic spine during any portion of the period beginning on and after April 27, 2015. The evidence of record does not show any symptoms which are consistent with the level of disability contemplated by the assignment of a 50 percent disability rating. As noted above, a 50 percent rating is warranted when the evidence shows unfavorable ankylosis of the entre thoracolumbar spine. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (memorandum decision); Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). However, both the objective medical evidence and the Veteran's own lay assertions do not suggest he is unable to move his spine. To the contrary, the clinical evidence of record demonstrates the Veteran remains able to perform forward flexion, extension, and lateral rotations. During the October 2015 VA examination, the Veteran was observed to perform forward flexion to 30 degrees; extension to 20 degrees; right and left lateral flexion to 20 degrees bilaterally; and right and left lateral rotation to 20 degrees bilaterally. The examiner reported that the Veteran experienced pain throughout range of motion testing. However, there was no additional limitation observed with repetitive use testing. The October 2015 examiner explicitly noted that there was no evidence of ankylosis. A review of the Veteran's VA treatment records does not reveal any evidence that the Veteran's range of motion was limited to the degree comparable to ankylosis. Further, the Board has considered the lay evidence offered by the Veteran in the form of correspondence, in addition to the medical evidence cited above. His factual recitation as to symptomatology associated with the lumbar spine is accepted as true. However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the present severity of his lumbar spine disability, and his assertions are far outweighed by the detailed opinions provided by the medical professionals who examined the Veteran's spine and discussed all relevant details for purposes of rating his disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). For these reasons, the Board finds that at no time during the periods in question has the disability warranted more than a 10 percent evaluation prior to April 27, 2015, or more than a 40 percent evaluation since. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered whether a higher disability evaluation is warranted on the basis 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 v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. A part that becomes painful on use must be regarded as seriously disabled. Id.; see also DeLuca. The Veteran has complained about back pain, but even considering pain, the Veteran's forward flexion is not consistently 30 degrees or less. As such, the Board concludes that the back pain is not of such severity as to merit a higher rating for any period on appeal even when contemplating pain, repetitive motion, and flare-ups, as these symptoms do not cause sufficient functional limitation. The Board has also considered whether a separate compensable rating for neurological impairment is warranted at any time during the rating period in question, other than that already granted radiculopathy of the bilateral lower extremities associated with lumbar strain by the RO. As the medical evidence does not show such impairment, the Board finds that a separate evaluation for associated neurological impairment is not warranted at this time. Because the preponderance of the evidence is against the claim, the benefit of the doubt provisions are inapplicable. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 56. Accordingly, the Veteran's request for an increased rating is denied. ORDER Entitlement to an initial rating in excess of 10 percent for lumbar strain, prior to April 27, 2015, is denied. Entitlement to a rating in excess of 40 percent for lumbar strain, from April 27, 2015, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs