Citation Nr: 1801197 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-11 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for lumbar spine degenerative joint disease with degenerative disc disease at L4-L5 and L5-S1. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD M. Gonzalez, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1973 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision from the Department of Veterans (VA) Regional Office (RO) in Roanoke, Virginia. FINDING OF FACT The Veteran's lumbar spine disability has been manifested by forward flexion greater than 60 degrees and a combined range of motion greater than 120 degrees, without muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, and without incapacitating episodes of intervertebral disc syndrome (IVDS). CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for lumbar spine degenerative joint disease with degenerative disc disease at L4-L5 and L5-S1 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Neither the Veteran nor his representative has raised any 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. 2016) (applying Scott to a duty to assist argument). Legal Criteria 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 (2017). The Veteran's arthritis of the lumbar spine is evaluated under Diagnostic Code 5243, which assigns ratings based upon the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. To warrant a higher rating for the lumbar spine disability the evidence would need to show forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion (ROM) 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. Id. 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 that, for VA compensation purposes, 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. Id. Analysis During the March 2012 VA examination the examiner diagnosed scoliosis with degenerative joint disease of the spine, lumbar radiculopathy, and spinal stenosis. The Veteran reported that his low back pain radiates to the left leg and is aggravated with vacuuming, prolonged walking, or prolonged siting. He reported that pain was worse in the morning, lessened with movement and alleviated with medication. The examiner reported that flare-ups do not impact the function of the thoracolumbar spine. Flexion was limited to 80 degrees and the combined range of motion for the thoracolumbar spine was 190 degrees. The Veteran reported that he had stiffness and discomfort with range of motion. The Veteran was able to perform repetitive-use testing and the forward flexion and combined range of motion was identical to the pre-repetitive use testing range of motion noted above. The examiner reported that the Veteran experienced functional loss and that contributing factors were less movement than normal and pain on movement. He reported that guarding and/or muscle spasm was present, but do not result in abnormal gait or spinal contour. He further reported that the Veteran does have IVDS, but that the Veteran has not had any incapacitating episodes due to IVDS in the past 12 months. The examiner reported that the Veteran's lumbar spine disability does not impact his ability to work. VA treatment records reflect that the Veteran has low back pain and numbness and a tingling sensation radiating down to the left leg just above the knee. In February 2011 the Veteran reported that his pain is more constant now. He described his pain as burning, sharp, and throbbing. He reported that the pain also radiates up to the middle of his back and he sometimes has muscle spasm. He reported he sometimes has difficulty picking up his left leg secondary to the pain and numbness and tingling. The treatment provider reported that the Veteran ambulates with a slight limp on the left side, but he otherwise had a normal balance and gait and his muscle strength in both legs was well preserved. None of the other medical evidence reflects that the Veteran has ever had forward flexion limited to 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. While the evidence reflects that the Veteran has muscle spasms and walks with a slight limp, the March 2012 VA examiner specifically denied abnormal gait or spinal contour, and the February 2011 VA treatment provider reported that his balance and gait was normal. A veteran is competent to describe symptoms that he is able to perceive through the use of his senses and to give evidence about what he has experienced. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case the Veteran has stated his lumbar spine disability results in pain, stiffness, muscle spasm, and that sitting, standing, walking, bending, exercise, climbing stairs, lying on the side, sleep, and sexual activities will aggravate the pain. See February 2011 VA Treatment Report. The lay statements do not indicate that the Veteran has forward flexion limited to 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. The Board has also considered whether separate ratings could be assigned based on neurological symptomatology. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). However, the evidence does not reveal that the Veteran has bowel or bladder impairment and the Veteran is already assigned separate disability ratings of the left and right lower extremities associated with the service-connected lumbar spine disability. No neurological symptomatology other than the service-connected radiculopathy is shown or alleged. As the preponderance of the evidence is against a finding that the Veteran's disability more nearly approximates the criteria for a higher rating, a higher rating is not warranted. 38 C.F.R. §§ 4.3, 4.7 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Rating In the August 2013 notice of disagreement the Veteran asserted that the "rating for my Back condition, does not consider 'Functional Loss' due to pain on movement, as required by 38 C.F.R § 4.40. Nor does the rating consider the effect of the treating medication." For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40 (2017); Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; incoordination; pain on movement; swelling; deformity; instability of station; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59. While the Veteran has complained that sitting, standing, walking, bending, exercise, climbing stairs, lying on the side, sleep, and sexual activities will aggravate the pain; such complaints are contemplated by the rating criteria and the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59, as these situations arise because of the above factors. The Board acknowledges that the Veteran uses a cane and medication to alleviate his symptoms. Although the use of a cane is not contemplated under the rating criteria, the symptoms corrected/alleviated by the use of a cane are addressed. In fact, the Veteran's medical treatment records and VA examination describe the level of his disability when he is not using a cane and, as noted above, those symptoms are contemplated under the ratings criteria. Likewise, while the Veteran told the examiner he used nonsteroidal anti-inflammatory drugs for pain, there is no indication he was taking medication at the time of the examination. Thus, the examination findings are found to represent the Veteran's symptoms and level of disability. Again, these symptoms are contemplated under the rating criteria. Jones v. Shinseki, 26 Vet. App. 56 (2012) (holding that the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria). In addition, the Board finds that the use of a cane and medication is not exceptional or unusual for someone with a lumbar spine disability. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111 (2008). As such, the Board concludes that referral for extraschedular consideration is not warranted. ORDER An initial evaluation in excess of 10 percent for lumbar spine degenerative joint disease with degenerative disc disease at L4-L5 and L5-S1 is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs