Citation Nr: 1759936 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 13-09 226A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE 1. Entitlement to an initial disability rating in excess of 10 percent for lumbar spine degenerative disc disease with thoracic strain (back disability) prior to December 4, 2013. 2. Entitlement to an initial disability rating in excess of 20 percent for a back disability, for the period beginning December 4, 2013. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from August 1983 to August 2010. This case comes to the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the RO in Winston-Salem, North Carolina. During the pendency of the appeal, the RO increased the rating for the back disability to 20 percent, effective December 4, 2013. Although the RO did not assign the maximum disability rating possible, the Veteran has indicated that he is satisfied with the 20 percent disability rating; he appeals the effective date of the 20 percent disability rating. As such, this was not a grant of the full benefit sought on appeal and the appeal for a higher disability evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In February 2017, the Board remanded the claim for additional development. It has returned to the Board for further appellate review. FINDINGS OF FACT 1. Prior to December 4, 2013, the Veteran's back disability was manifested by forward flexion to 90 degrees and 240 degrees combined range of motion, with no additional limitations of range of motion on repetitive use; muscle spasm, guarding severe enough to result in an abnormal gait, abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis of the cervical spine was not shown. 2. From December 4, 2013, the Veteran's back disability has manifested as IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; it has not been manifested as unfavorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire spine, or IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321(b), 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2017). 2. For the period beginning December 4, 2013, the criteria for disability rating of 40 percent, but not higher, for the Veteran's lower back disability, have been met. 38 U.S.C.A. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5235-5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the Veteran was provided with the relevant notice and information in a letter prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA has also satisfied its duty to assist the Veteran in the development of his claim. The Veteran was afforded VA examinations in July 2010 and December 2013, and the RO obtained his service treatment records (STRs), private and VA treatment records. Additionally, in compliance with the February 2017 Board remand directives, the RO obtained updated VA treatment records and afforded the Veteran another VA examination in May 2017 to evaluate the severity of his back disability. Therefore, the AOJ has substantially complied with the remand orders and satisfied the duty to assist. Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). Merits of the Increased Ratings Claim Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). Where an appeal is from the initial rating assigned with the award of service connection, separate "staged" ratings may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 (2017). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's back disability is currently rated under 38 C.F.R. § 4.71a; DC 5242 (although the rating decision code sheet indicates DC 5243, the rating decision reflects the criteria under DC 5242). Under DC 5242, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or 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. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a, DC 5242, Note (2). All measured ranges of motion are to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, DC 5242, Note (4). Under the alternative IVDS Formula, a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Incapacitating episodes having a total duration of at least six weeks during the past 12 months warrants a 60 percent rating. 38 C.F.R. § 4.71a, DC 5243 (2017). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40 ), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DC 5242, 5243, Note (1). The Board notes that the Veteran is service-connected for left leg radiculopathy, rated as 20 percent disabling, effective December 2013. Neither the evidence nor the Veteran has indicated disagreement with this rating and the evidence of record does not indicate a basis for a higher rating or indication of other associated neurologic abnormality. A review of the record shows that the Veteran consistently complained of back pains before and after separation from service. A February 2010 STR notes tenderness to palpation over the lower back. The Veteran underwent a June 2010 in-service VA examination which revealed evidence of radiating pain on movement. Muscle spasm was absent. There was tenderness noted on exam described as T4-T6 and L4-S4. Spinal contour was preserved, though there was tenderness. There was no guarding of movement. There was no weakness evident; muscle tone and musculature was normal. Lasegue's sign was negative. There was no atrophy present in the limbs. There was no ankylosis of the thoracolumbar spine. Range of motion testing showed flexion limited 90 degrees with pain; extension to 30 degrees with pain; right lateral flexion, left lateral flexion, right rotation and left rotation were all 30 degrees. There was no pain, weakness, lack of endurance, fatigue or incoordination reported after repetitive use. There were no additional limitations of motion after repetitive use. The inspection of the spine revealed normal head position with symmetry in appearance. There was symmetry of spinal motion with normal curves of the spine. Cranial nerves I-XII were normal. Coordination was within normal limits. There was no lumbosacral motor weakness. There were no signs of lumbar IVDS with chronic and permanent nerve root involvement. There were no non-organic physical signs. X-rays showed mild osteopenia. The examiner diagnosed degenerative disc disease lumbar with thoracic strain. Private treatment records show treatment for back pain, to include epidural steroid injections; however, they do not all contain range of motion measurements. A private treatment record dated October 2011 notes that there was no tenderness of the lumbosacral spine. A November 2011 private treatment record notes tenderness, flexion limited to 90 degrees with pain and 240 degrees combined range of motion. A September 2012 record notes that the Veteran was able to run 3 miles and lift heavier items without pain. A February 2013 note shows that the Veteran's back pain is aggravated when he runs and lifts weights. At the December 2013 VA examination, the Veteran reported that his back pain had worsened. He indicated that his physical activity is restricted due to pain. Flexion was limited to 40 degrees with painful motion at 15 degrees, extension was limited to 20 degrees with painful motion at 10 degrees, right lateral flexion was limited to 15 degrees with painful motion at 5 degrees, left lateral flexion was limited to 20 degrees with painful motion at 15 degrees, right lateral rotation was limited to 15 degrees with painful motion, and left lateral rotation was limited to 20 degrees with painful motion. Post repetitive-use ranges of motion were flexion to 40 degrees, extension to 5 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 20 degrees. The examiner indicated that the Veteran had incapacitating episodes with a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A May 2017 VA examination shows that the Veteran has forward flexion limited to 60 degrees, extension to 30 degrees, right and left lateral flexion to 25 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 20 degrees. After repetitive-use testing, forward flexion was reduced to 50 degrees, extension was reduced to 20 degrees, right and left lateral flexion to 25 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 20 degrees. The examiner noted that the Veteran did not have any incapacitating episodes due to IVDS in the past 12 months. After a review of all the evidence of record, both lay and medical, the Board finds that prior to December 4, 2013, the criteria for a rating in excess of 20 percent for a back disability have not been met or more nearly approximated. 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5242 (2017). As noted above, there were no incapacitating episodes due to IVDS and range of motion testing conducted at the June 2010 VA examination notes flexion to 90 degrees with pain; extension to 30 degrees with pain; right lateral flexion, and left lateral flexion, right rotation and left rotation all to 30 degrees. The record does not show limitation of flexion to 30 degrees as needed for the next higher (40 percent) disability rating. For the period beginning December 4, 2013, the criteria for a 40 percent rating under DC 5243 is warranted as the December 2013 VA examination noted incapacitating episodes with a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A higher 60 percent rating is not warranted as no incapacitating episodes with a total duration of at least 6 weeks are noted. Further, a higher 50 percent rating under DC 5242 is not warranted as there is no unfavorable ankylosis of the entire thoracolumbar spine. In sum, the Board has determined the Veteran is entitled to a 40 percent rating for his lower back disability, but not higher, for the period beginning December 4, 2013. He is not entitled to a rating in excess of 10 percent prior to December 4, 2013. ORDER For the period prior to December 4, 2013, a disability rating in excess of 10 percent for the service-connected back disability is denied. For the period beginning December 4, 2013, a 40 percent disability rating, but no higher for the service-connected back disability is granted, subject to the regulations governing the award of monetary benefits. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs