Citation Nr: 1757787 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 12-09 272 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased disability rating for residuals of a lumbosacral spine injury, to include degenerative disc disease, currently evaluated as 20 percent disabling prior to June 27, 2014, to include whether there is any resulting bowel impairment. 2. Entitlement to an increased disability rating for residuals of a lumbosacral spine injury, to include degenerative disc disease, currently evaluated as 40 percent disabling from June 27, 2014, to include whether there is any resulting bowel impairment. ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1981 to June 1987. This matter is before the Board of Veterans' Appeal (Board) on appeal from a January 2011 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Subsequently, an April 2015 rating assigned a higher 40 percent for the Veteran's service-connected low back disability effective, June 27, 2014. Since the RO did not assign the maximum disability rating possible, the appeal for a higher disability evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). This matter was most recently before the Board in August 2015 and has been returned for appellate consideration. Also before the Board in August 2015 was the issue of entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). During the pendency of the appeal, in a May 2017 rating decision, the RO granted a TDIU effective June 27, 2014. As this represents a full grant of the benefit sought, that issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Furthermore, the Veteran has not expressed disagreement with the effective date assigned. See 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). This appeal was processed using the Virtual VA/VBMS paperless claim processing system. Accordingly, any future consideration of this Veteran's case should take into account the existence of this electronic record. FINDINGS OF FACT 1. Prior to June 27, 2014, the Veteran's residuals of a lumbosacral spine injury, to include degenerative disc disease, was manifested by forward flexion limited at most to 60 degrees and the combined range of motion of the thoracolumbar spine was greater than 120 degrees, but not by incapacitating episodes or resulting bowel impairment. 2. From June 27, 2014, the Veteran's residuals of a lumbosacral spine injury, to include degenerative disc disease, was not manifested by unfavorable ankylosis of the entire thoracolumbar spine, incapacitating episodes lasting duration of six weeks, or any resulting bowel impairment. CONCLUSIONS OF LAW 1. Prior to June 27, 2014, the criteria for a disability rating in excess of 20 percent for residuals of a lumbosacral spine injury, to include degenerative disc disease, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.71a, Diagnostic Code 5242 (2017). 2. From June 27, 2014, the criteria for a disability rating in excess of 40 percent for residuals of a lumbosacral spine injury, to include degenerative disc disease, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.71a, Diagnostic Code 5242 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Veterans Claims Assistance Act of 2000 (VCAA) Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2017) (applying Scott to a duty to assist argument). The Board notes that the examinations provided in this case do not include passive range of motion and do not specify range of motion in 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. Clinical records include passive range of motion testing, and the clinical and examination records reveal that the testing was done while standing, which is considered to be testing on weight bearing as the Veteran must support the weight of his body while undergoing such testing. 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. Similarly, testing on weight bearing would generally produce more restrictive results than testing done without 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. Likewise, there is no prejudice in relying on VA examinations that involved weight-bearing for the lumbar spine. Finally, the Board is satisfied that there has been substantial compliance with the directives issued in the August 2015 Board remand as additional records and a VA examination were obtained. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Accordingly, the Board will address the merits of the Veteran's appeal. 2. Merits of the Claims Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran's symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Disability evaluations are determined by assessing the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). If there is a question as to which evaluation should be applied to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran's disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. Fenderson v. West, 12 Vet. App, 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities involving the spine are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242 (2017). 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. 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). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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. § 4.40 (2017). Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45 (2017). Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2017). Although pain may cause functional loss, pain itself does not constitute functional loss. 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. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R.§ 4.40). Under the general rating formula for diseases and injuries of the lumbar spine, ratings are assigned as follows: A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. 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 warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. The notes applicable to the General Formula are as follows: Note (1): Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, and left and right lateral rotation is 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 cervical spine is 340 degrees and 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). IVDS (preoperatively or postoperatively) may be evaluated either 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. See 38 C.F.R. § 4.25 (combined ratings table) (2017). The Formula for Rating IVDS Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrants a 20 percent evaluation. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, General Rating Formula, Diagnostic Code 5247 (2017). With respect to the Veteran's claim, the Board first notes that it has reviewed all of the evidence in the Veteran's claims file, placing an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record, but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim. Here, the RO awarded service connection for the Veteran's degenerative disc disease of the lumbar spine and assigned a 20 percent initial rating, effective August 29, 2005 in a December 2005 rating decision. An April 2015 rating decision increased the disability evaluation to 40 percent disability, effective June 27, 2014. A. Prior to June 27, 2014 The Veteran now contends that his service-connected disability is more disabling than the assigned 20 percent rating prior to June 27, 2014. VA treatment records dated October 2005 to January 2011 included the Veteran's ongoing reports of chronic back pain that was described as sharp or stabbing and radiated to the Veteran's legs. An October 2005 examination report confirmed a diagnosis of degenerative disc disease of the lumbar spine. The Veteran reported low back pain that radiated to his legs. Range of motion of the thoracolumbar spine was as follows: forward flexion to 60 degrees with pain beginning at 35 degrees; extension backwards of 40 degrees, right lateral flexion of 25 degrees; left lateral flexion of 20 degrees; right lateral rotation of 45 degrees; and left lateral rotation at 70 degrees with pain at the extremes of these movements. The examiner observed no objective evidence of painful motion, spasm or weakness, but noted tenderness over the right sacroiliac joint. There were no postural abnormalities, fixed deformities, or abnormality of musculature of the back. The Veteran reported two incapacitating episodes, which lasted a total of six days. A January 2011 examination report noted complaints of chronic low back pain due to degenerative disc disease of the lumbar spine. Range of motion of the thoracolumbar spine was as follows: flexion of 0 to 60 degrees; extension from 0 to 10 degrees; left lateral flexion 0 to 15 degrees; left lateral rotation 0 to 30 degrees; right lateral flexion 0 to 30 degrees; and right lateral rotation 0 to 30 degrees. The examiner noted objective evidence of pain on active range of motion and repetitive motion, however no additional limitations were observed after three repetitions of range of motion. As to Deluca factors, the examiner found no objective clinical evidence that function was additionally limited by pain, fatigue, weakness, incoordination, or lack of endurance with three or more repetitions except as noted above. Additionally, no ankylosis of the spine was noted. There was no spasm, atrophy, guarding, pain with motion, tenderness, or weakness of the spine. The Veteran was noted to have an abnormal gait, specifically the examiner noted that the Veteran walked slowly and cautiously with a cane. The examiner observed no objective abnormalities of the thoracolumbar sacropinalis. Thus upon reviewing the record, the Board finds that a rating in excess of 20 percent for low back disability for the period prior to June 27, 2014 is not warranted. The Board notes that the objective medical evidence does not indicate that the Veteran had favorable ankylosis of the spine, diagnosis of IVDS/incapacitating episodes lasting four weeks, or forward flexion of the spine at 30 degrees or less. Therefore, the criteria for a higher rating of 40 percent have not been met. See 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243 (2017). Upon the Veteran's consistent reports of pain and flare-ups, the Board has also considered the Veteran's functional loss. The January 2011 VA examiner found there was pain on range of motion and repetitive motion without additional limitations after three repetitions. He indicated there was no objective clinical evidence that function was additionally limited by pain, fatigue, weakness, incoordination, or lack of endurance with three or more repetitions. The Board finds that the Veteran is not so limited by the factors noted in DeLuca and §§ 4.40, 4.45, and 4.59 as to constitute forward flexion of 30 degrees or less, or favorable ankylosis of the spine as he was limited at most by pain to 35 degrees. See also Mitchell, 25 Vet. App. 32; DeLuca, 8 Vet. App. 202. Thus, a rating in excess of 20 percent for low back disability for the period prior to June 27, 2014 is not warranted. B. After June 27, 2014 The Veteran now contends that his service-connected disability is more disabling than the assigned 40 percent rating after June 27, 2014. VA treatment records dated September 2015 to March 2017 included the Veteran's ongoing reports of chronic lower back pain. A June 2014 Disability Benefits Questionnaire confirmed the Veteran's diagnosis of degenerative disc disease of the lumbar spine. The Veteran reported flare-ups that occurred once per day, lasting 3-4 hours, and rendered the Veteran unable to walk. Range of motion testing of the thoracolumbar spine yielded the following results, with lateral bending and rotation each way: flexion was to 20 degrees; extension was to 15 degrees; right lateral flexion was to 15 degrees; left lateral flexion was to 15 degrees; right lateral rotation was to 15 degrees; and left lateral rotation was to 15 degrees. Pain was noted upon motion. The Veteran was unable to perform repetitive-use testing with at least three repetitions due to pain. The examiner noted that the Veteran did have functional loss and/or functional impairment of the lower back due to less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing and/or weight-bearing. Additionally, the examiner observed localized tenderness or pain and guarding and/or muscle spasm, but no abnormal gait or spinal contour. The Veteran was noted not to have a diagnosis of IVDS. A February 2016 examination report confirmed a diagnosis of degenerative arthritis of the spine and provided a diagnosis of IVDS. The Veteran reported flare-ups that occurred weekly with duration up to three days. The Veteran reported the decreased ability to ambulate due to his back pain. Range of motion testing of the thoracolumbar spine yielded the following results, with lateral bending and rotation each way: flexion was to 40 degrees; extension was to 5 degrees; right lateral flexion was to 10 degrees; left lateral flexion was to 5 degrees; right lateral rotation was to 20 degrees; and left lateral rotation was to 15 degrees. Due to the abnormal range of motion of the Veteran's lower back, the Veteran reported the inability to do physical activities around the house. The examiner noted pain with weight bearing. The Veteran was unable to perform repetitive use testing with at least three repetitions due to pain. The examiner found the examination to be medically consistent with the Veteran's statements regarding functional loss with repetitive use over time. The examiner noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. Moreover, the examiner noted that pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups, but without a change in range of motion. The examiner also noted no guarding or muscle spasm of the lower back. The Veteran reported three episodes of acute signs and symptoms due to IVDS that required bed rest in the past twelve months. The Veteran also reported the use of a cane and walker. The Veteran's diagnosis of arthritis was confirmed by x-ray. The examiner further provided that Veteran's reported constipation was not related to his lower back disability. The Veteran currently is rated at 40 percent. A higher rating is not warranted as the evidence has not demonstrated unfavorable ankylosis of the entire thoracolumbar spine. The Veteran has had the ability to flex and extend his spine. Additionally, while the Veteran reported three episodes of incapacitating episodes the criteria for a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes is not met because the reported episodes were less than six weeks in duration. Even considering the Veteran's flare-ups, the most probative evidence does not reflect that his flare-ups limit motion to such a degree as to warrant an increased rating. The June 2014 examiner observed that the Veteran was unable to perform repetitive-use testing with at least three repetitions due to pain. The examiner noted that the Veteran had functional loss and/or functional impairment of the lower back due to less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing and/or weight-bearing. However, the February 2016 examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. He also noted that pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups, but without a change in range of motion. In any case, even taking into account the earlier examiner's findings of functional loss, there is no indication that it was to such a degree as to be commensurate with unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. §§ 4.40, 4.45, 4.59; Mitchell, 25 Vet. App. 32; DeLuca, 8 Vet. App. 202. Moreover, the February 2016 examiner found that no bowel incontinence was related to the back disability. Therefore, a separate rating is not warranted for such a complication during the appeal period. Additionally, as to neurological symptoms, the Veteran is separately evaluated for his bilateral lower extremity radiculopathy in an April 2015 rating decision with which he has not expressed disagreement. Thus, an initial rating in excess of 40 percent for degenerative disc disease, lumbar spine with IVDS from June 27, 2014 is not warranted. 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, 28 Vet. App. 366, 369-370 (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 Prior to June 27, 2014, entitlement to a disability rating in excess of 20 percent for residuals of a lumbosacral spine injury, to include degenerative disc disease, is denied. From June 27, 2014, entitlement to a disability rating in excess of 40 percent for residuals of a lumbosacral spine injury, to include degenerative disc disease, is denied. ____________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs