Citation Nr: 1759913 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 07-28 083A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial rating above 10 percent for a service-connected lumbar disc disease. 2. Entitlement to service connection for a foot disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Edelstein, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1963 to January 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2006 and June 2010 rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Oakland, California. In February 2011, the Veteran testified regarding his lower back claim before a Veterans Law Judge (VLJ) who is no longer at the Board. A transcript of the February 2011 hearing has been associated with the claims file. In a March 2016 letter, the Veteran was notified that the VLJ who conducted the hearing was no longer at the Board and he was to respond within thirty days if he wanted a new hearing. A May 2016 Report of Contact detailed a telephone contact with the Veteran in which he confirmed he did not want another hearing. In March 2012 and May 2016, the Board remanded these claims for additional development. There has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The issue of service connection for a foot disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. For the period from April 18, 2011 to February 24, 2015, forward flexion was to 50 degrees. 2. For the periods before April 18, 2011 and after February 24, 2015, there is no evidence of forward flexion to 60 degrees or less, or a combined range of motion of 120 degrees of less, or muscle spasms or guarding that was severe enough to result in an abnormal gait or change in spinal contour; there is no diagnosis of intervertebral disc syndrome or of incapacitating episodes which warrant a higher evaluation. CONCLUSIONS OF LAW 1. For the period April 18, 2011 to February 24, 2015, the criteria for a 20 percent rating, but no higher, for a lumbar spine disability have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.321, 4.40, 4.59, 4.71a, Diagnostic Codes 5243 (2017). 2. For the periods prior to April 18, 2011 and after February 24, 2015, the criteria for an initial disability rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.321, 4.40, 4.59, 4.71a, Diagnostic Codes 5243 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 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. § 1155 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Disability evaluations are determined by evaluating 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 Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran's lumbar spine disability is currently evaluated as 10 percent disabling under Diagnostic Code 5243, applicable to intervertebral disc syndrome (IVDS). 38 C.F.R. § 4.71a. Pursuant to 38 C.F.R. § 4.71a, disabilities assigned Diagnostic Code 5243 may be rated either under the general rating formula for diseases and injuries of the spine (General Rating Formula) or under the formula for rating IVDS based on incapacitating episodes. Under the General Rating Formula, a 20 percent rating is assigned 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 requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. Note (1): Evaluate any associated objective neurologic 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, left and right lateral flexion 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 thoracolumbar spine is 240 degrees. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 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. 38 C.F.R. § 4.71a, DC 5243 Note (1). The Veteran contends that the current rating does not adequately reflect the severity of his disability. He has reported pain which radiated to the back of the knees up to the buttocks. The Veteran also reported constant leg pain, and having back spasms once or twice a week, as well as being unable to sit or stand for very long periods of time. (February 2011 Hearing Transcript). The Veteran was afforded a VA examination for his lumbar spine condition in June 2006. He described the pain as sharp and burning, stiffness. His pain was frequent in nature. On a scale of 1 to 10, where 10 is severe, he rated the pain at 6 when he is at rest. After repetitive use, he feels increased pain (7) fatigue, weakness, and lack of endurance. He noted that his pain radiates into his lower extremity on the right. Standing, squatting during exercise, and bending can cause the veteran to have a flare-up of pain. This flare-up is moderate in degree and can last for several hours. The examiner noted that the Veteran's gait was normal; he had no difficulty with heel or toe walking. On range of motion testing, he had full lumbar flexion with active, passive, and repetitive testing to 90 degrees. Extension was to 20 degrees with active, passive, and repetitive range of motion testing. Left and right lateral flexion were both to 25 degrees. Left and right lateral rotation were to 25 degrees, each, with active, passive, and repetitive range of motion testing. On straight leg raise testing, pain radiated to the right knee, but not to the foot. Reflex testing reveals 1+ at the knees and at the ankles. Motor testing and sensation were normal. The examiner commented there would be an additional 10 degrees loss of motion due to pain, weakened movements, fatigability and lack of endurance. The Veteran was afforded a new VA examination for his lumbar spine condition in April 2010. He reported constant pain, on a level of 7/10; after repetitive use, pain increased to 10. He also reported pain to his left leg. He also reported flare-ups that can occur daily, and last from hours to days, depending on the activity that caused the flare. The Veteran reported that he had had several incidents of back pain the required bed rest in the previous 12 months. Range of motion testing of the lumbar spine showed flexion at 90 degrees and after three repetitions of movement, extension at 30 degrees, lateral flexion at 30 degrees, lateral rotation at 30 degrees, with no additional loss of forward flexion with pain, fatigue, and weakness, with no lack of endurance and loss of coordination, with pain being the most significant factor. Physical inspection of the lumbar spine showed normal gait, with normal walking on his toes and heels, and normal squatting. There was no evidence of muscle spasms, no atrophy and no tenderness noted. Muscle strength was marked a 5/5. The Veteran described his radiating pain as constant in nature, sharp with swelling, including throbbing, burning, locking, weakness, stiffness, numbness and tingling which gives-way. The Veteran reported he has had several incapacitating episodes in the past twelve months requiring treatment and bed rest. During his hearing in February 2011 the Veteran described his back pain as unbearable with back spasms occurring once or twice a week. Private treatment records in March 2011 showed an assessment of left lower back pain due to degenerative disc disease and left lower extremity radiculopathy. An April 2011 VA physical therapy record noted the Veteran's report that his pain averages 6/10 and increases as his activity increases or without medication. He complained of pain down the left side, to the back of the calf. Straight leg testing was negative on the right and left. Range of motion showed flexion to 50 degrees; lateral flexion to 10 degrees, right and left; rotation to 5 degrees, right and left. The provider noted increased lordotic curve, forward head and shoulders; and antalgic gait on the left. Most recently, the Veteran was afforded a VA back examination in February 2015. Range of motion testing showed forward flexion of 90 degrees. Extension was noted to 30 degrees. Right and left lateral flexion were noted to 25 degrees, each. Right and left lateral rotation were noted to 25 degrees, each. There was no change in range of motion noted after repetitive testing. There was no pain in any range of motion including active, passive, and or repetitive use. There was no pain noted when the joint was used in weight-bearing or non-weight bearing. There was no evidence of localized tenderness or pain on palpation of the joints or soft tissue. The examiner noted there was no guarding or muscle spasms of the thoracolumbar spine; gait was marked as normal, as well as the spinal contour. The examiner noted that the Veteran did not have a peripheral nerve condition, peripheral neuropathy or muscle atrophy. Reflex examination and sensory examination were marked as normal for all areas. The Veteran's gait was marked as normal. Median nerve evaluation showed that the Phalen's and Tinel's signs were negative. The examiner noted that no nerves of the lower extremities were affected. The examiner noted that the Veteran does not use any assistive devices as a mode of locomotion. It was noted that the Veteran did not report flare-ups that impact the function of his back or any functional loss or functional impairment of the back. The February 2015 examiner noted less movement than normal. However, the examiner marked that there was no factors associated with limitation of motion. Similarly, there was no pain, weakness, fatigability, or incoordination significantly limiting functional ability during flare-ups or when the joint is used repeatedly over time. Muscle strength testing was marked as normal 5/5. For all tested movements, the Veteran was marked as having neither muscle atrophy or ankylosis. Deep tendon reflexes were all marked as normal +2. Sensory examination to light touch was all marked as normal; furthermore, position sense and cold sense were also marked as normal. Vibration sense of the left side was marked absent. Straight leg raising tests results were all negative. The Veteran had no radicular pain or any other subjective symptoms due to radiculopathy. No other neurologic abnormalities were found associated with the thoracolumbar spine. The Veteran was negative for IVDS and did not have incapacitating episodes. The Board finds that a staged rating is warranted based on the facts found during the appeal period. Fenderson v. West 12 Vet. App. 119 (1999). The criteria for a 20 percent rating are met for the period from April 18, 2011 (the date of the VA treatment record which noted decreased range of motion, with flexion to 50 degrees) to February 24, 2015, the date of the VA examination that showed improved findings. A higher rating is not warranted for that period as there is no evidence of forward flexion to 30 degrees. For the periods prior to April 2011 and after February 2015, the criteria for a 20 percent rating are not met or more closely approximated. Even with consideration of pain on examination and as reported by the Veteran, flexion has been to greater than 60 degrees and the combined range of motion is greater than 120 degrees. Further, there is no evidence of muscle spasm or guarding during those periods. The Board has considered whether a higher rating is warranted under the formula for rating IVDS based on incapacitating episodes. The record contains no evidence of a diagnosis of IVDS or of incapacitating episodes as that term is defined by VA regulation. 38 C.F.R. § 4.71a. The Veteran reported incapacitating episodes for his back; however, there is no evidence showing that a physician prescribed bed rest to treat the Veteran's low back disability, consequently there is no basis for an increased rating under the IVDS formula. The Veteran complained on several occasions of radiating pain. Separate disability ratings for neurological manifestations of service-connected lumbar spine disability are also not warranted. The Board finds that a separate compensable rating for neurological impairment is not warranted for either lower extremity at any time during the rating period in question, as the competent medical evidence does not show such impairment during this period. Examinations have included the Veteran's subjective reports but objective neurological testing has been normal. The Board has also considered the Veteran's lay statements that his back disability is worse than currently evaluated. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Based on the above, the Board finds that a 20 percent rating, but no higher, is warranted from April, 18, 2011 to February 24, 2015, but a rating in excess of 10 percent is not warranted for the periods before April 2011 and after February 2015. ORDER A 20 percent rating is warranted for the Veteran's lumbar disc disease from April 18, 2011 to February 24, 2015, subject to the laws and regulations governing the award of monetary benefits. An increased rating in excess of 10 percent for the period prior to April 18, 2011 and after February 24, 2015 is denied. REMAND A new examination is needed before the Board can decide the service connection claim because the January 2010 VA examination is inadequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was noted to have second degree bilateral pes planus, asymptomatic, at enlistment. Thus, the issue is whether his pre-existing pes planus was aggravated by service. The January 2010 VA examination included the opinion that the Veteran's currently diagnosed foot disability was not related to service, but did not consider the pre-existing foot disability. Accordingly, the case is REMANDED for the following actions: 1. Arrange to have the Veteran scheduled for an appropriate VA examination to determine the current nature and likely etiology of his foot disability. Copies of all pertinent records, to include a complete copy of the REMAND, should be made available to the examiner. Based on the examination and review of the record, the examiner should address the following: (a) Identify all current bilateral foot disabilities. (b) If the Veteran is diagnosed with pes planus, is it at least as likely as not that the pes planus was aggravated beyond normal progression during the Veteran's service from August 1963 to January 1984? (c) If the Veteran is diagnosed with a foot disability other than pes planus, is it at least as likely as not that the foot disability is related to service? The examiner must consider any in-service bilateral foot complaints and injuries, and the Veteran's contentions that his current bilateral foot disorder is a result of his period of service. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs