Citation Nr: 1756719 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 07-31 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a rating in excess of 20 percent for traumatic arthritis of the lumbosacral spine. ATTORNEY FOR THE BOARD K. Kardian, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1975 to December 1975 and from July 1976 to April 1984. This matter is before the Board of Veteran's Appeals (Board) on appeal from an October 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The RO granted an additional increased rating of 20 percent for the Veteran's low back disability in a September 2016 rating decision, effective February 7, 2005. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. The Board has reviewed the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. FINDING OF FACT For the entire period on appeal the Veteran's arthritis of the lumbosacral spine was manifested by complaints of constant pain with increased pain on motion and tenderness, with limitation of forward flexion of the thoracolumbar spine to 65 degrees, there was not forward flexion to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, and/or incapacitating episodes as defined by VA have not been shown. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for arthritis of the lumbosacral spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board notes that neither the Veteran nor his representative identified any shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Compliance with Prior Remands The case was most recently remanded in December 2016. Previously the case was remanded in September 2011. The case was most recently remanded to obtain additional treatment records and provide the Veteran with a VA examination in order to determine the current severity of his service-connected low back disability. In April 2017 correspondence the Veteran was directed to return the enclosed VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs and VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs so outstanding treatment records could be obtained. See April 28, 2017 VA correspondence. The Veteran has not completed the required authorization and release of records or identified any outstanding treatment records. VA treatment records from February 2017 to September 2017 have been associated with the claims file. The Veteran was afforded a VA examination in July 2017 and a supplemental opinion in September 2017 addressing the current severity of his service-connected low back disability. As such the Board finds that there has been substantial compliance with the prior remands. III. Schedular Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 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 service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2017). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; 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). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as staged ratings, and here staged ratings are not warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. 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. 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. In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. 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). IV. Increased Rating The Veteran contends he is entitled to an increased rating for his service-connected arthritis of the lumbar spine. As noted above, in a September 2017 rating decision the Veteran's arthritis of the lumbar spine was granted an increased 20 percent rating effective February 7, 2005. The Veteran's low back disability is rated at 20 percent under 38 C.F.R. § 4.71a Diagnostic Code 5243, intervertebral disc syndrome. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for 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 rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent for 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 states that, 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. Intervertebral disc syndrome (preoperatively or postoperatively) is to 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 under § 4.25. Diagnostic Code 5243 provides for rating intervertebral disc syndrome (IVDS) under the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). The Formula for Rating IVDS based on Incapacitating Episodes provides ratings for incapacitating episodes as follows: having a total duration of at least 6 weeks during the past 12 months (60 percent); having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent); having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent); and having a total duration of at least one week but less than 2 weeks during the past 12 months (10 percent). 38 C.F.R. § 4.71a . Note 1 states that 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. Note 2 indicates that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, the rater is to evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Based on the evidence of record, the Board finds that the preponderance of the evidence is against a finding that an increased rating in excess of 20 percent for the Veteran's low back disability is warranted during the period on appeal. At different times during the appeal the Veteran has stated his low back disability is manifested by pain, increased pain on motion and tenderness. The Veteran is competent to testify to such lay observable symptomatology, and there is no evidence that these statements are not credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, these statements are entitled to probative value as to the severity of his low back disability during the appeal. The Veteran was afforded a VA examination in July 2017. The Veteran reported constant back pain, and pain medication does not help. See July 2017 VA examination. The examination noted degenerative arthritis of the spine. The Veteran did not report flare-ups rather noted constant pain. Functional loss or functional impairment was noted including increased pain with walking and driving. Range of motion testing revealed forward flexion to 65 degrees, extension was to 20 degrees, right and left lateral flexion was to 20 degrees, and right and left lateral rotation was to 25 degrees. There was pain with motion and evidence of pain on weight bearing and localized tenderness over the lumbar spine. After repetitive use there was no additional loss of function or range of motion and pain, weakness, fatigability or incoordination did not significantly limit functional ability. Muscle spasms and guarding were noted resulting in abnormal gait or abnormal spinal contour. Muscle strength testing was 5/5 and no muscle atrophy was reported. On the reflex exam the Veteran's knees and ankles were hypoactive. A sensory examination was normal. The right and left straight leg raising test was positive. The examiner noted signs and symptoms of radiculopathy including moderate constant pain and moderate intermittent pain and mild paresthesia and/or dysesthesia and numbness in the bilateral lower extremities. Moderate involvement of the sciatic nerve bilaterally was noted. No additional neurological abnormalities including bowel or bladder problems were found. No ankylosis was reported. The examiner noted the Veteran has intervertebral disc syndrome (IVDS) but has not had any episodes of acute signs and symptoms of IVDS requiring bed rest prescribed by a physician in the past 12 months. X-ray imaging noted arthritis. The examiner noted the Veteran's low back disability impacts his ability to work as he has pain in his lower back on walking, cannot run or jump and has pain on weight bearing and non-weight bearing, but not on passive movements. No pain was reported on sedentary activities. Then a supplemental opinion was associated with the claims file in September 2017. See VA September 2017 supplemental opinion. The examiner noted evidence of pain when the low back is used in non-weight bearing. The examiner noted moderate bilateral radiculopathy in the lower extremities. The examiner additionally noted that as the Veteran was recently released from prison after 25 years to provide a full description of how his low back disability has affected his ordinary activities over the course of the appeal is not possible. There is no evidence that the VA examiners were not competent or credible, and as the examination reports were based on accurate facts and an objective examination of the Veteran, these are entitled to significant probative weight in determining the severity of the Veteran's low back disability during the course of the appeal. Nieves-Rodriguez, 22 Vet. App. 295. VA and private treatment records have been associated with the claims file. Treatment records note ongoing complaints of constant low back pain which affects his activity level, sleep and normal work. See May 24, 2017 VA treatment record. Based on the lay and medical evidence of record, the Board finds that the Veteran's low back disability does not more nearly approximate the level of severity contemplated by a 40 percent rating, as at no point during the period on appeal has the evidence shown a 40 percent rating is warranted. The Board notes the Veteran's contentions regarding his increased pain which is exacerbated by moving and sitting for long periods of time. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, such lay evidence, even when accepted as accurate, does not establish a level of disability contemplated by a higher evaluation. The July 2017 VA examination noted forward flexion to 65 degrees. In considering, which disability evaluation 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. Based on the evidence of record a 20 percent rating is warranted. In order to warrant a higher 40 percent rating, there must be forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. In this case, however, limitation of flexion has not been shown to be less than 65 degrees, nor has there been ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.7. In addition, as noted above, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain, weakness, premature or excess fatigability, and incoordination. See DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Here, the Veteran denied flare-ups and the VA examiner specifically found that repetition on the range of motion testing did not result in additional loss of function or range of motion. Consequently, a higher rating is not warranted on this basis. As noted above, Diagnostic Code 5243 provides for rating disabilities of the spine under either the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating IVDS, which results in the higher rating. However, there is no evidence of incapacitating episodes as contemplated by the regulation, and neither the lay or medical evidence suggests that there has been physician prescribed bed rest. In light of the lack of evidence demonstrating any episodes requiring bed rest prescribed by a physician and treatment by a physician for intervertebral disc syndrome, and indeed, in light of the lack any assertion on the part of the Veteran that the criteria for incapacitating episodes have been met, the Board finds that a higher rating under the formula for rating intervertebral disc syndrome based on incapacitating episodes is not warranted. As to a separate rating for associated objective neurological abnormalities the Board notes that in a September 2017 rating decision service connection for right and left lower extremity radiculopathy was rated with an evaluation of 20 percent effective February 7, 2005. Accordingly, a separate evaluation for neurologic manifestations has been granted for the entire period on appeal, and an additional rating for neurological abnormalities is not warranted. Additionally, the Board notes that the Veteran has raised any other issues, nor have any other issues been raised by the record. See Doucette v. Shulkin, 28 Vet.App. 366 (2017)(confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of records). All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against increased ratings in excess of 20 percent for the Veteran's service-connected low back disability. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. ORDER Entitlement to an evaluation in excess of 20 percent for arthritis of lumbosacral spine is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs