Citation Nr: 1759964 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 11-30 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to higher staged initial ratings for degenerative disc disease of the lumbar spine, rated as 10 percent prior to July 27, 2016 and 20 percent thereafter. 2. Entitlement to higher staged initial ratings for degenerative disc disease of the cervical spine, rated as noncompensable prior to July 27, 2016, and 10 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Seay, Counsel INTRODUCTION The Veteran served on active duty from September 1985 to December 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The claims file is currently under the jurisdiction of the Cleveland, Ohio RO. The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2016. A transcript of that hearing is associated with the claims folder. During the pendency of the appeal, an October 2016 rating decision assigned a higher initial rating of 20 percent for degenerative disc disease, lumbar spine, effective July 27, 2016 and assigned a higher initial rating of 10 percent for degenerative disc disease, cervical spine, effective July 27, 2016. Staged ratings have been created and the issues on appeal have been recharacterized. See AB v. Brown, 6 Vet. App. 35 (1993) (in an appeal in which the veteran expresses general disagreement with the assignment of a particular rating and requests an increase, the AOJ and the Board are required to construe the appeal as an appeal for the maximum benefit allowable by law or regulation). The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disabilities, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Here, while the record reflects that the Veteran's service-connected disabilities impact the Veteran's employment, neither the record nor the Veteran raises a claim of unemployability due to his service-connected disabilities. Accordingly, the issue of entitlement to a TDIU is not before the Board at this time. FINDINGS OF FACT 1. Prior to July 27, 2016, the Veteran's degenerative disc disease, lumbar spine, was manifested by pain, with forward flexion greater than 60 degrees. 2. From July 27, 2016, the Veteran's degenerative disc disease, lumbar spine, has been manifested by pain, productive of forward flexion greater than 30 degrees but not greater than 60 degrees. 3. Prior to July 27, 2016, the Veteran is considered competent and credible to report painful motion of the cervical spine. 4. From July 27, 2016, the degenerative disc disease, cervical spine, has been manifested by pain, productive of limitation of motion. CONCLUSIONS OF LAW 1. The criteria for entitlement to a staged initial rating for degenerative disc disease, lumbar spine, higher than 10 percent prior to July 27, 2016 or higher than 20 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.71a, Diagnostic Code 5242 (2017). 2. The criteria for entitlement to a 10 percent initial rating, but no higher, for degenerative disc disease, cervical spine, prior to July 27, 2016, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.71a, Diagnostic Codes 5003, 5242 (2017). 3. The criteria for entitlement to an initial rating higher than 10 percent, for degenerative disc disease, cervical spine, from July 27, 2016, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.71a, Diagnostic Codes 5003, 5242 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In addition, VA's duty to assist has been met. Identified medical records were requested and associated with the claims folder. The Veteran did not complete authorization forms concerning his private medical treatment and testified that he did not receive VA medical treatment. The Veteran has also been provided adequate VA medical examinations concerning the service-connected disabilities on appeal. First, the Board recognizes the argument that the VA medical examination was completed by a family care practitioner and not an examiner with expertise in orthopaedics. However, the VA medical examination contains the requisite medical findings and there is no objective evidence that the examination was cursory or otherwise inadequate. Concerning the range of motion findings of the joint at issue, the Board notes that the 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). However, there is no indication that weight-bearing testing was not completed. Indeed, the July 2016 VA examination reports indicated that there was no evidence of pain with weight-bearing. In addition, 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. 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. Further, the Board notes that the July 2016 VA examination report did not specify when pain began on range of motion testing. See Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). With resolution of doubt in the Veteran's favor, the Board will concede the existence of pain throughout range of motion testing. Hence, reported range of motion findings are with pain, and, as such, demonstrated the extent of associated functional impairment, and thus, no Mitchell prejudice to the Veteran. Further, the Veteran was provided an opportunity to attend a new VA medical examination and did not report for the VA examination and did not present good cause for failing to show. Disability Ratings- In General Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155 (West 2014). Percentage ratings are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). In this case, the Veteran did not appear for a scheduled VA medical examination in conjunction with his appeal for assignment of higher initial ratings. He has not provided good cause for failure to report and has not requested a new VA medical examination. 38 C.F.R. § 3.655. Therefore, the Board will adjudicate the claims based on the evidence of record. The Board notes that the rating decision on appeal assigned initial ratings for the lumbar and cervical spine disabilities with effective dates of January 1, 2010. However, given that the Board is evaluating initial rating assignments with consideration of the medical history of the disability, the Board will utilize the findings from a July 2009 VA medical examination report. See 38 C.F.R. § 4.41 (2017). Degenerative disc disease, lumbar spine, prior to July 27, 2016 In this case, the clinical findings of record do not warrant the assignment of an initial rating in excess of 10 percent prior to July 27, 2016. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The clinical findings do not show 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, or ankylosis. The Board considered whether a rating in excess of 10 percent would be warranted on the basis of additional functional impairment and loss. See 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds that the assigned 10 percent rating contemplates the Veteran's disability picture, to include functional impairment and loss due to pain, flare-ups and repetitive use. The Board considered the Veteran's statements, testimony, and symptoms concerning his functional limitations including fatigue, stiffness, spasms, difficulty sitting and standing, and decreased motion. However, even considering the Veteran's reports of his symptoms, the competent and probative clinical findings do not indicate that the Veteran's disability, even when considering any such additional functional impairment and loss, has been shown to be comparable to 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. Indeed, upon repetitive testing on examination in July 2009, there was no additional impairment in range of motion. The examiner noted that the joint function of the spine was additionally limited by pain after repetitive use, but not fatigue, weakness, lack of endurance or incoordination. An initial rating in excess of 10 percent is not warranted. Concerning Diagnostic Code 5243, the Veteran testified that he has incapacitating spasms. However, there is no competent evidence to reflect incapacitating episodes. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The medical treatment records and VA examination report do not show that the Veteran was prescribed bed rest by a physician due to IVDS. The Veteran is not competent to state that he experienced incapacitating episodes due to IVDS as he has not been shown to have the medical expertise and knowledge to do so. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As a result, an initial rating in excess of 10 percent is not warranted under Diagnostic Code 5243. In adjudicating a claim, the competence and credibility of the Veteran and other lay persons must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran is competent to give evidence about what he observes or experiences. For example, he is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Again, as detailed above, the statements have been considered and the Board finds that the statements are outweighed by the clinical findings of record. The Board assigns greater probative value to the clinical findings in the VA examination report that were recorded following physical examination of the Veteran, and based on the medical expertise of the examining physician. These are more probative than the Veteran's assertions requesting a higher rating. In sum, there is no identifiable period that would warrant a rating in excess of 10 percent for the Veteran's disability prior to July 27, 2016. Staged ratings are not appropriate, other than those assigned. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In light of the above, the preponderance of the evidence is against the assignment of an initial rating in excess of 10 percent. The benefit-of-the-doubt doctrine does not apply and the appeal must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Degenerative disc disease, lumbar spine, from July 27, 2016 The clinical findings of record do not warrant the assignment of a staged initial rating in excess of 20 percent from July 27, 2016. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The VA medical examination report does not show forward flexion of the thoracolumbar spine of 30 degrees or less, or demonstration of ankylosis, so as to warrant the assignment of a staged initial rating in excess of 20 percent. The Board has considered whether an initial rating in excess of 20 percent would be warranted on the basis of additional functional impairment and loss. See 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds that the assigned 20 percent rating contemplates the Veteran's disability picture, to include functional impairment and loss due to pain, flare-ups and repetitive use. The Board has taken into account the Veteran's statements, testimony, and symptoms recorded in the VA examination reports concerning his functional limitations, consisting of flare-ups, pain, limitation of motion, effects on standing, sitting, walking, exercise, bending, straightening out his spine, sleep, and calling out sick from work up to two times per year. However, even considering the Veteran's reports of his symptoms, the competent and probative clinical findings do not indicate that the Veteran's disability, even when considering any such additional functional impairment and loss, has been shown to be comparable to flexion limited to 30 degrees or less, or ankylosis of the spine. The July 2016 VA examination report noted that the Veteran was able to complete repetitive testing and there was no additional loss of function or range of motion after testing. The examiner could not provide opinions regarding additional functional impairment and loss during repeated use or flare-ups as such would be speculative due to the Veteran's inability to replicate such a flare-up during the examination. A rating in excess of 20 percent is not warranted. Concerning Diagnostic Code 5243, the Veteran testified that he has incapacitating spasms. Again, there is no evidence of prescribed bed rest by a physician due to IVDS and the Veteran is not competent to state that he experienced incapacitating episodes due to IVDS as he has not been shown to have the medical expertise and knowledge to do so. See Kahana, 24 Vet. App. 428, 435 (2011). As a result, a rating in excess of 20 percent is not warranted under Diagnostic Code 5243. Concerning the Veteran's reported symptoms of his disability and the severity of such symptoms, the Board considered such symptoms, but determined that the statements are outweighed by the clinical findings of record. The Board assigns greater probative value to the clinical findings in the VA examination report that were recorded following physical examination of the Veteran, and based on the medical expertise of the examining physician. These are more probative than the Veteran's assertions requesting a higher rating. Accordingly, a higher rating is not warranted. In sum, there is no identifiable period that would warrant a rating in excess of 20 percent for the Veteran's disability. Staged ratings are not appropriate, other than those assigned. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In light of the above, the preponderance of the evidence is against the claim for a rating in excess of 20 percent. The benefit-of-the-doubt doctrine does not apply and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Cervical Spine Prior to July 27, 2016, the Veteran's disability was rated as noncompensably disabling. In this respect, a July 2009 VA examination report revealed normal range of motion findings pertaining to the cervical spine but also noted the presence of degenerative changes found on x-ray. See 38 C.F.R. § 4.71a, Plate V. The Veteran did not report any symptoms pertaining to the cervical spine at the time of the July 2009 VA examination. However, the Veteran testified in February 2016 as to pain in his cervical spine and during range of motion. In addition, in a July 2012 VA Form 9, the Veteran reported pain and limitation of motion. Resolving reasonable doubt in the Veteran's favor, the Board finds that a compensable initial rating of 10 percent is warranted prior to July 27, 2016. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. However, the Board finds that an initial rating in excess of 10 percent for degenerative disc disease, cervical spine, is not warranted at any time during the rating period on appeal. The clinical findings do not show combined range of motion of the cervical spine not greater than 170 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 or forward flexion of 15 degrees or less or any findings of ankylosis. The Board considered whether an initial rating in excess of 10 percent would be warranted on the basis of additional functional impairment and loss. See 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds that the assigned 10 percent rating contemplates the Veteran's disability picture, to include functional impairment and loss due to pain, flare-ups and repetitive use. Even considering the Veteran's reports of pain, limitation of motion, and difficulty typing on the computer, the clinical findings do not reflect additional functional impairment and loss that would be more comparable to clinical findings or combined range of motion not greater than 170 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 or ankylosis. The July 2016 VA examination report noted that the Veteran did not report flare-ups, was able to complete repetitive testing and there was no additional loss of function or range of motion after testing. The examiner could not provide opinions regarding additional functional impairment and loss during repeated use as such would be speculative due to the Veteran's inability to replicate such a flare-up during the examination. A rating in excess of 10 percent is not warranted. Concerning Diagnostic Code 5243, the Veteran testified that he has incapacitating spasms. However, there is no competent evidence to show that the Veteran was prescribed bed rest by a physician due to IVDS and the Veteran is not competent to state that he experienced incapacitating episodes due to IVDS as he has not been shown to have the medical expertise and knowledge to do so. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As a result, a rating in excess of 10 percent is not warranted under Diagnostic Code 5243. In sum, there is no identifiable period that would warrant an initial rating in excess of 10 percent for the Veteran's disability. Staged ratings are not appropriate. In light of the above, the preponderance of the evidence is against an initial rating in excess of 10 percent for service-connected cervical spine disability. The benefit-of-the-doubt doctrine does not apply and the appeal must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Neurological Manifestations Concerning the Veteran's reported neurological symptoms, the Board finds that separate ratings are not warranted. With respect to any neurological disability of the left lower extremity, the Board finds that a separate rating is not warranted. The Board attributes great value to the VA examination reports because the examiners performed neurological examinations, to include sensory examinations, and did not indicate any findings of radiculopathy or other diagnosed neurological disability. The Board concludes that the Veteran does not suffer from additional neurological deficiency so as to warrant a separate disability ratings. See Bierman v. Brown, 6 Vet. App. at 129-132 (1994). The Board adds that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record with respect to the appeals for higher initial ratings. 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). (CONTINUED ON NEXT PAGE) ORDER Entitlement to higher staged initial ratings for degenerative disc disease, lumbar spine, rated as 10 percent prior to July 27, 2016 and 20 percent thereafter, is denied. Entitlement to a 10 percent initial rating, but no higher, for degenerative disc disease, cervical spine, prior to July 27,2016, is granted. Entitlement to an initial rating in excess of 10 percent, for degenerative disc disease, cervical spine, from July 27,2016, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs