Citation Nr: 1757747 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 06-28 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an evaluation in excess of 40 percent for service-connected spondylolisthesis, spondylolysis, disc bulging, and foraminal encroachment of L5-S1. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1969 to September 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Initially, a July 2008 Board decision denied the issue on appeal. However, in February 2011, the Board vacated the July 2008 Board decision and remanded the claims for further evidentiary development. The Board remanded the issue on appeal again in August 2012, March 2013, July 2015, April 2016, and February 2017. The case now returns for appellate review. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2008. A transcript of that hearing is of record. The Board is cognizant that the United States Court of Appeals for Veterans Claims (Court) has held that a claim for a total rating based on individual unemployability due to a service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, is part of the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the record shows that the Veteran is retired, and that his back pain causes difficulty standing, walking, driving, lifting, and carrying. However, the Veteran has not argued, and the record does not otherwise reflect, that the disability renders him unable to secure or follow a substantially gainful occupation. The Board concludes that a claim for a TDIU has not been raised. FINDING OF FACT For the rating period on appeal, the most probative evidence of record shows that the Veteran's spondylolisthesis, spondylolysis, disc bulging, and foraminal encroachment of L5-S1 were manifested by pain productive, at worst, of functional impairment comparable to limitation of forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for a disability rating in excess of 40 percent for spondylolisthesis, spondylolysis, disc bulging, and foraminal encroachment of L5-S1 are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5235-5243 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). There has been at least substantial compliance with all remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). All VA examinations and medical opinions provided are adequate for decision-making purposes. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Legal Criteria The Veteran's back disability is currently rated at 40 percent disabling from March 31, 1995. The Veteran filed a claim for an increased rating for his service-connected spine disability in March 2004. As sucht, the relevant rating period on appeal is from up to one year prior to that date. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2016). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2016); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2016). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The spine is evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5235-5243. Intervertebral disc syndrome (IVDS) is rated under DC 5243 and is to be evaluated under the General Rating Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the General Rating Formula are made 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. DC 5242 for degenerative arthritis of the spine may also be rated under DC 5003. The General Rating Formula provides for a 40 percent disability rating for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. The General Rating Formula provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Note (2) provides, in pertinent part, 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 is 240 degrees for the thoracolumbar spine. 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. DC 5243 provides for a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The holding in DeLuca v. Brown, 8 Vet. App. 202 (1995) clarified that, when evaluating musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which there is functional loss due to pain, weakness, excess fatigability or incoordination, assuming these factors are not already contemplated by the relevant rating criteria. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath, 1 Vet. App. at 592. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). However, although pain may cause functional loss, pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance", in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. Analysis The Board notes that the Veteran has reported complaints of low back pain consistent with that noted in the clinical records. However, while he is competent to report observable symptoms of his service-connected low back disability at issue, he has not been shown to possess the requisite expertise or training to assess the appropriate schedular disability rating to be assigned under an appropriate diagnostic code. As such, he is deemed to not be competent in that regard. Turning to the medical evidence of record, a thorough review does not show that the Veteran has a competent medical finding, or clinical demonstration, of unfavorable ankylosis of the thoracolumbar spine or entire spine. As such, a higher evaluation under the General Rating Formula is not warranted. With regard to IVDS, the Veteran reported being prescribed bed rest in April 2008, however the Veteran's self report of prescribed bed rest is not supported by further documentation. An October 2015 VA examination found that the Veteran had no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past twelve months. The Veteran again reported having been prescribed bed rest at an April 2016 spine examination, but the record did not show supporting documentation. A subsequent February 2017 VA examination determined that the Veteran has not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the last 12 months. While the Board acknowledges the Veteran's reports of being prescribed bed rest, he is not competent to report what a medical professional conveyed to him regarding a diagnosis or prescription. Robinette v. Brown, 8 Vet. App. 69 (1995); Warren v. Brown, 6 Vet. App. 4 (1993). ("What a physician said, and the layman's account of what he purportedly said, filtered through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute medical evidence." Robinette, 8 Vet. App. at 77 (1995)). The Board affords more probative weight to the contents of the objective medical evidence of record and the findings of the VA examiners who reviewed the record and personally examined the Veteran in the context of their medical expertise. As such, a 60 percent rating under DC 5243 is not warranted. The Veteran's radiculopathy is separately rated bilaterally under DC 8620. With regard to the functional impact of the Veteran's disability, the February 2017 VA examiner noted that the Veteran has difficulty bending down and lifting due to back pain. The Veteran is unsteady walking and has difficulty carrying things. When sitting for a long time, his back gets stiff, and driving causes pain. The Veteran reports difficulty showering, and his wife tying his shoes. The Veteran uses a cane and has help getting dressed. The Board has considered whether the Veteran is entitled to higher ratings for his service-connected back disability under 38 C.F.R. §§ 4.40, 4.45 and 4.59 on the basis of additional functional loss during flare-ups or upon repetitive use over time. See DeLuca, 8 Vet. App. 202 (1995). After repetitive use, the Veteran's range of motion for flexion decreased by 5 degrees in an April 2016 VA examination, and 15 degrees in a July 2013 VA examination. Other examinations showed no additional limitation from repetitive use testing. With regard to flare-ups, the February 2017 VA examination shows that the Veteran reports flare ups occurring from normal use of the back, and ending up on the couch or bed three to four times a year for two to three days at a time due to back pain. An April 2016 VA examination was reportedly conducted during a flare-up; however, the Veteran still had flexion to 30 degrees. The Veteran's June 2006 VA examination did not report flare-ups, and showed that he was a postal worker delivering mail at the time. In view of the foregoing, the Board finds that the functional impact of flare-ups and repetitive use does not rise to the level of the next highest disability rating, characterized by unfavorable ankylosis, i. e. fixation in flexion or extension, of the thoracolumbar spine. The many physical examinations of record do not include any findings of ankylosis, including during a reported flare up in an April 2016 examination. Thus, higher ratings based on additional functional loss due to flare-ups or repetitive use are not warranted. The Board notes that some VA examination reports do not include passive range of motion and do not specify range of motion with and without weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). The fundamental issue for Correia is that VA examinations perform adequate joint testing for pain. Generally, active range of motion testing produces more restrictive results than passive range of motion testing, in that passive range of motion testing requires the physician to force the joint through its motions. There is no indication that range of motion testing was performed other than on weight bearing. Therefore, there is no prejudice to the Veteran in relying on the VA examinations that involved active range of motion testing because such results tend to produce the "worst case scenario" of impairment and thus would tend to support the highest possible rating. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 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 record). ORDER Entitlement to an evaluation in excess of 40 percent for service-connected spondylolisthesis, spondylolysis, disc bulging, and foraminal encroachment of L5-S1, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs