Citation Nr: 1801348	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  13-14 101	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an evaluation in excess of 10 percent prior to February 19, 2013, and in excess of 20 percent thereafter for a lumbar spine disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

H. Fisher, Associate Counsel


INTRODUCTION

The Veteran had honorable active duty service with the United States Navy from April 1996 to April 2002.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  The Veteran timely perfected an appeal to the Board.

This case was most recently before the Board in May 2017, and was remanded for additional evidentiary development, to include a new VA examination.  In August 2017, the RO issued a rating decision granting an initial 10 percent evaluation for the lumbar spine disability prior to February 19, 2013.  This increase is not a grant of full benefits sought on appeal, and thus properly remains before the Board.

The Board has considered whether TDIU may be raised based upon the record.  As the evidence of record indicates that the Veteran is presently gainfully employed, consideration of TDIU is not warranted at this time.


FINDINGS OF FACT

1.  Prior to February 2013, the Veteran's lumbar spine disability manifested with, at worst, forward flexion was to 90 degrees, extension to 30 degrees, left lateral flexion to 40 degrees, left lateral rotation to 35 degrees, right lateral flexion to 40 degrees and right lateral rotation to 35 degrees.  

2.  Since February 2013, the Veteran's lumbar spine disability did not manifest with forward flexion of the thoracolumbar spine to 30 degrees of less; unfavorable ankylosis of the thoracolumbar spine; or, unfavorable ankylosis of the entire spine.


CONCLUSION OF LAW

The criteria for an evaluation in excess of 10 percent prior to February 2013, and in excess of 20 percent thereafter, for a lumbar spine disability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VCAA Notice

VA has completed the necessary steps in order to meet its duties to notify and assist in this case.  The Veteran has not raised any procedural arguments regarding the notice or assistance provided.  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  The Board also finds that the May 2017 remand directives have been substantially complied with.  Stegall v. West, 11 Vet. App. 268 (1998).

II.  Increased Ratings

Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27 (2017).  The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability.  38 C.F.R. § 4.1.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2017).  However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability.  38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered.  In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2 (2017).  VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Conditions of the spine are evaluated using one combined rating schedule.  Effective September 26, 2003, the General Rating Formula for Diseases and Injuries of the Spine, rated spinal conditions with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, 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.

Intervertebral Disc Syndrome (IVDS) 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.  Under the IVDS Formula, incapacitating episodes of disc disease having a total duration of at least six weeks during the past 12 months warrants a 60 percent rating.  For incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is warranted.  With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is warranted.  With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, a 10 percent rating is warranted.  38 C.F.R. § 4.71a, Diagnostic Code 5243.

Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures.  It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  38 C.F.R. § 4.40.  The factors of disability affecting joints are reduction of their normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement.  38 C.F.R. § 4.45.  These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465.  Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

When all of 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.A. § 5107(b); 38 C.F.R. § 3.102.

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal.

Prior to February 2013

The Veteran contends that he is entitled to an evaluation in excess of 10 percent prior to February 19, 2013.

The Veteran's post-service treatment records reflect that he underwent a right L5-S1 discectomy in late June 2010.  Subsequent evaluations reflect normal motor function, and sensation preserved throughout his lower extremities.  His gait and stance were noted as normal in August 2010, though he continued to experience spasms and pain following surgery.

A December 2010 VA examination noted the Veteran's history of back pain and surgery.  The Veteran reported the onset of dull pain in his low back with prolonged standing.  The pain was moderate in nature and occurred weekly to monthly.  At that time, there was no radiation, nor were there incapacitating episodes.  The Veteran was able to walk 1-3 miles.  His posture, head position, symmetry and gait were all normal.  There were no spasms noted.  The examiner did not find evidence of guarding, atrophy, pain with motion or weakness.  The Veteran's flexion was to 90 degrees, extension to 30 degrees, left lateral flexion to 40 degrees, left lateral rotation to 35 degrees, right lateral flexion to 40 degrees and right lateral rotation to 35 degrees.  There was no objective evidence of pain on active range of motion or following repetitive motion testing.  There were no additional limitations after repetitive use testing.  Reflexes and muscle strength were normal.  The examiner noted that the Veteran has a TENS unit in place at the time of examination.  The Veteran was employed for an electronic firm as a field technician on a full time basis and lost approximately 3 weeks due to his back surgery in the previous year.  The examiner noted a diagnosis of degenerative disc disease that reportedly caused an inability to run, and pain after prolonged standing.

After a thorough review of the evidence of record, the Board finds that an initial evaluation in excess of 10 percent is not warranted.  In this regard, there is no evidence of limitation of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a 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.  Rather, the evidence of record demonstrates predominantly normal range of motion with some indication of muscle spasms following his 2010 surgery that resolved prior to the December 2010 VA examination.  Moreover, the muscle spasms noted following his surgery were not noted to cause abnormal gait or abnormal spinal contour.  Accordingly, an evaluation in excess of 10 percent is not warranted under Diagnostic Code 5242.  

An evaluation in excess of 10 percent based on any of the DeLuca factors is not appropriate.  38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-07.  The Veteran's present evaluation of 10 percent was initially awarded due to the presence of pain on motion despite normal range of motion measurements.  The Veteran has not demonstrated symptoms of functional loss due to weakness, fatigability, incoordination or pain on movement of a joint that more closely approximately the symptoms listed for a 20 percent evaluation.  Overall, any functional loss that the Veteran may have experienced in the lumbar spine after repeated use of the joint or during a flare-up is adequately accounted for in the 10 percent rating currently assigned.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-207. 

An initial rating higher than 10 percent for the lumbar spine disability is also not warranted under the IVDS Formula.  For reference, VA regulations define an incapacitating episode as a period of acute signs and symptoms due to disc disease that requires bed rest prescribed by a physician and treatment by a physician.  See Diagnostic Code 5243.  In this case, the Veteran has not reported a diagnosis of IVDS, nor has he been prescribed bedrest by a physician on account of his lumbar spine disability.  Because the competent evidence does not show a present diagnosis of IVDS that is productive of any incapacitating episodes as defined by regulation, let alone any having a total duration of at least two weeks but less than four weeks per year, the criteria for an initial rating higher than 10 percent for the service-connected lumbar spine disability are not met under Diagnostic Code 5243.

In adjudicating a claim, the Board must assess the competence and credibility of the evidence, to include statements made by the Veteran.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The Board also has a duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  While the Veteran is competent to provide testimony to establish the occurrence of medical symptoms, he is not medically qualified to prove a matter requiring medical expertise.  Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007).  Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).  The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence; however, such lack of contemporaneous evidence is for consideration in determining credibility.

While the Veteran is certainly competent to speak to the severity of symptoms associated with his lumbar spine disability, the credible medical evidence of record indicates that the Veteran's disability manifested primarily with pain on motion with forward flexion to 90 degrees, extension to 30 degrees, left lateral flexion to 40 degrees, left lateral rotation to 35 degrees, right lateral flexion to 40 degrees and right lateral rotation to 35 degrees.  Private medical records reflect muscle spasms only prior to the December 2010 VA examination.  The weight of the medical records does not demonstrate a decrease in range of motion, but reflects pain on motion.  As such, the Board assigns a higher probative weight to that competent, credible evidence of record.

The Board places more probative weight on the medical evidence of record establishing that the Veteran's symptoms warranted an initial 10 percent evaluation.  As the probative, credible evidence of record weighs against a finding of an increased initial evaluation, the benefit of the doubt doctrine does not apply.  An initial evaluation in excess of 10 percent prior to February 2013 is not warranted.

Since February 2013

The Veteran contends that he is entitled to an evaluation in excess of 20 percent for his service-connected lumbar spine disability since February 2013.

In a February 2013 VA examination, the report noted a previous diagnosis of degenerative disc disease of the lumbar spine.  The Veteran reported flare ups, and stated that he could not lift anything or play with his children as he normally would.  Forward flexion was to 80 degrees with no objective evidence of pain on examination.  Extension was to 30 degrees with no objective evidence of pain on examination.  Right lateral flexion was to 20 degrees with no objective evidence of pain on examination.  Left lateral flexion was to 25 degrees with no objective evidence of pain on examination.  Right lateral rotation was to 30 degrees with no objective evidence of pain on examination.  Left lateral rotation was to 30 degrees with no objective evidence of pain on examination.  Repetitive use testing did not change the Veteran's range of motion.  The examiner noted some functional loss caused by less movement than normal.  There was no localized tenderness or pain to palpation.  There was no guarding or muscle spasms noted.  Muscle strength, reflexes, and the sensory examinations were normal.  There was no muscle atrophy found.  The examiner diagnosed the Veteran with IVDS with no incapacitating episodes over the previous 12 months.  With respect to functional impact, the Veteran reported that his company laid him off as part of a reduction in workforce, and he was training to conduct home inspections.

In June 2015, the Veteran underwent another VA examination to assess the severity of his lumbar spine disability.  The Veteran reported ongoing low back pain, mostly on the right side.  The pain was dull, aching, and sometimes sharp in nature.  He was employed full time as the Executive Director of a nonprofit organization assisting in the rehabilitation of criminal offenders.  The Veteran reported flare ups once or twice per week and an inability to lift over 20 pounds.  The Veteran also stated that he could not sit for long periods of time or drive long distances.  He could not do any work either at home or on the job that required bending forward.  On examination, the Veteran demonstrated full range of motion with pain noted that did not cause functional loss.  There was evidence of pain on flexion, right lateral rotation, left lateral rotation and weight bearing.  There was no decrease in range of motion following repetitive use testing.  Pain, fatigue, weakness and lack of endurance contributed to functional loss.  Range of motion was estimated in flare ups to be normal.  The Veteran demonstrated guarding or muscle spasm that resulted in abnormal gait or an abnormal spinal contour.  Muscle strength was slightly diminished on the right side, but there was no muscle atrophy.  Reflexes were diminished in the knee and ankle.  Radiculopathy was noted to be moderate overall in the right lower extremity.  IVDS was noted with less than two weeks of bed rest in the previous 12 months. 

In August 2017, another VA examination assessed the severity of the Veteran's lumbar spine disability.  The Veteran did not report flare ups, and stated that his functional impairment consisted of being unable to turn, bend or lift.  Forward flexion was to 80 degrees, extension to 25, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees and left lateral rotation to 30 degrees.  Range of motion contributed to functional loss as it was painful to sit, stand or bend.  Pain was noted on the examination and in weight bearing.  There was localized tenderness or pain on palpation.  Repetitive use testing did not decrease the Veteran's range of motion.  The DeLuca factors did not significantly limit functional ability with repeated use over time.  Muscle spasm or guarding were noted but did not result in abnormal gait or abnormal spinal contour.  Muscle strength was approximately normal and no atrophy was noted on examination.  The Veteran's reflexes and sensory examinations were also normal.  Radiculopathy was noted in the bilateral lower extremities, mild in the left side and moderate in the right.  No ankylosis was present.  The Veteran's IVDS had no episodes of physician prescribed bed rest within the last 12 months.  The Veteran's functional impact was noted as difficulty moving donated furniture due to pain.

After a thorough review of the evidence of record, the Board finds that an evaluation in excess of 20 percent is not warranted since February 2013.  Evidence of record does not reflect limitation of forward flexion of the thoracolumbar spine to 30 degrees or less, or unfavorable ankylosis.  Rather, the evidence of record demonstrates range of motion limited to, at worst, 80 degrees of forward flexion.  Accordingly, an evaluation in excess of 20 percent is not warranted under Diagnostic Code 5242.  

An evaluation in excess of 20 percent based on any of the DeLuca factors is similarly not appropriate.  38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-07.  The Veteran's present evaluation of 20 percent was awarded due to the presence of guarding or muscle spasms that resulted in abnormal gait or abnormal spinal contour.  While the DeLuca factors were noted to contribute to functional loss, they did not more closely approximate unfavorable ankylosis of the thoracolumbar spine through the period on appeal, particularly as the Veteran maintained range of motion that was, at worst, limited to 80 degrees flexion.  Overall, any functional loss that the Veteran may have experienced in the lumbar spine after repeated use of the joint or during a flare-up is adequately accounted for in the 20 percent rating currently assigned.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-207. 

An evaluation in excess of 20 percent for the lumbar spine disability is also not warranted under the IVDS Formula.  While the Veteran was noted to have IVDS during this period on appeal, less than two weeks of bed rest had been prescribed within the previous 12 months.  At the time of the April 2017 VA examination, no episodes of prescribed bed rest were noted in the previous 12-month period.  Under Diagnostic Code 5243, in order to warrant the next highest evaluation, the Veteran would have needed to demonstrate incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  As this level of severity is not supported by the record, a higher evaluation under the IVDS Formula may not be awarded.

In adjudicating a claim, the Board must assess the competence and credibility of the evidence, to include statements made by the Veteran.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The Board also has a duty to assess the credibility and weight given to evidence.  Madden, 125 F.3d at 1481.  While the Veteran is competent to provide testimony to establish the occurrence of medical symptoms, he is not medically qualified to prove a matter requiring medical expertise.  Barr, 21 Vet. App. at 307-08.  Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence.  Rucker, 10 Vet. App. at 74.  The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  However, such lack of contemporaneous evidence is for consideration in determining credibility.

While the Veteran is certainly competent to speak to the severity of symptoms associated with his lumbar spine disability, the credible medical evidence of record indicates that the Veteran's disability manifested primarily with forward flexion limited to, at worst, 80 degrees with less than 2 weeks of prescribed bed rest for IVDS.  The Veteran suffered from muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour, but no ankylosis was found on examination.  The weight of the medical records does not demonstrate a limitation of flexion to 30 degrees or less, any unfavorable ankylosis, or bed rest in excess of 4 weeks for IVDS. Rather, the April 2017 had shown no bed rest prescribed by a physician over the previous 12 months.  As such, the Board assigns a higher probative weight to that competent, credible evidence of record.

The Board places more probative weight on the medical evidence of record establishing that the Veteran's symptoms warranted a 20 percent evaluation since February 2013.  As the probative, credible evidence of record weighs against a finding of an increased evaluation for this period, the benefit of the doubt doctrine does not apply.  An evaluation in excess of 20 percent since February 2013 is not warranted.


ORDER

Entitlement to an evaluation in excess of 10 percent prior to February 19, 2013, and in excess of 20 percent thereafter for a lumbar spine disability is denied.




____________________________________________
L. M. BARNARD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs