Citation Nr: 1801871 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 13-04 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an increased rating for degenerative joint disease of the lumbosacral spine with chronic lumbar strain (low back disability) rated at 10 percent prior to May 5, 2014, and 20 percent thereafter. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Mays, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from November 1993 to September 1995, and from October 2001 to April 2002, and February 2003 to April 2004. This matter is on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Louis, Missouri. In February 2013, the Veteran requested a hearing and then cancelled that request in October 2015. In a September 2014 rating decision, the RO subsequently increased the rating for lumbosacral strain from 10 percent to 20 percent effective May 5, 2014. As this increase did not represent a complete grant of the benefits on appeal, the Veteran's claim for an increased rating for this disability remains in appellate status. AB. v. Brown, 6 Vet. App. 35, 38 (1993). This matter was remanded in July 2017 to update VA treatment records and for a VA examination in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). Updated VA treatment records were added to the claims file. The Veteran was afforded a VA examination in July 2017 which complied with the holding in Correia. There has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). FINDINGS OF FACT 1. For the period prior to May 5, 2014, the Veteran was found to have pain, weakness, and lack of endurance. At worst, her forward flexion was 80 degrees and her combined range of motion was 170 degrees with pain. She had incapacitating episodes of IVDS approximately 10 days per year. 2. For the period after May 5, 2014, the Veteran's forward flexion was at worst, 50 degrees and she did not have ankylosis or incapacitating episodes of IVDS. CONCLUSIONS OF LAW 1. Prior to May 5 2014, the criteria for a rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C. §1155 (2012); 38, C.F.R. §§ 3.102, 3.159, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5235-5243 (2017). 2. From May 5, 2014, the criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §1155 (2012); 38, C.F.R. §§ 3.102, 3.159, 4.3, 4.40, 4.45, 4.59, 4.71a, DC 5235-5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Assist VA's duty to notify was satisfied by a letter dated June 2010. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's post-service medical treatment records, including VA treatment records and private treatment records, have been obtained to the extent they were both identified and available. The duty to assist also includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In the instant case, the Veteran was provided with VA examinations in June 2010, May 2014, and July 2017. In her February 2013 formal appeal, the Veteran asserted that the June 2010 VA examination was in adequate. She stated, for instance, that the examiner asked her if she could walk a mile or 20 minutes in one day. She maintains that she made it very clear to the examiner that she could only walk in increments, and that she had to stop due to the pain and numbness. The Board notes that the June 2010 VA examination contains range of motion measurements that reflect loss of additional motion after repetitive motion testing as well as observable pain, fatigue, and lack of endurance. The Board accepts the examination as adequate and will use it in the evaluation of the claim. However, the Board will also consider the Veteran's description of her symptoms in her substantive appeal. The VA examinations are adequate because they are based upon consideration of the Veteran's pertinent medical history, her lay assertions and current complaints, and because it considers the Veteran's range of motion, as well as pain, and pain on weight bearing as was instructed. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Based on the foregoing, the Board concludes that VA has complied with its duty to assist the Veteran in establishing her claim. II. Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. 38 C.F.R. pt. 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient. A coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Where a Veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before she filed the claim for increase, the present level of the Veteran's disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). She was granted a 20 percent as of May 5, 2014, prior to that, in September 2008, she was granted a disability rating of 10 percent disability rating as of July 16, 2008. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2017). However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, there is vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a (2017). A 20 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is 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 evaluation is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2017). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). Under the rating schedule, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. Id. at Note 2 and Plate V. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40 (2017); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to at least the minimum compensable evaluation for motion that is accompanied by pain. See Burton v. Shinseki, 25 Vet. App. 1 (2011). However, evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment. The minimum compensable rating has been in effect for the entire appeal period. Period Prior to May 5, 2014 The Veteran was afforded a VA examination in June 2010. At that time, she reported that her symptoms had worsened . X-rays showed degenerative changes at L3 and L4 and a possible fracture of L5. She was diagnosed with degenerative joint disease of the lumbosacral spine with chronic lumbar strain. During initial testing, she had full range of motion. However, after repetitive testing, her forward flexion was 80 degrees, extension was 10 degrees, lateral rotation was 30 degrees bilaterally, and lateral was 10 degrees bilaterally. Her combined range of motion was 170 degrees. No peripheral nerve damage was found, however degenerative arthritis was also noted. She was prescribed daily use of a TENS unit, Motrin, and Flexeril. Upon examination, her gait was normal. However, there was objective evidence of pain, fatigue, and lack of endurance. Her spine contour was normal. She required no ambulatory devices. She indicated that she could walk for 20 minutes, albeit in increments. She did indicate that her walk was unsteady, and that she experienced weakness; however her gait and posture were determined to be normal. The Veteran reported that she experienced pain every day, which she said was located in the center of her back and travelled to both hips. She told the examiner she experienced pain from one hour to all day. In her February 2013 substantive appeal, the Veteran asserted that she has pain in her back with everything she does; and that her back affects every aspect of her life, including sitting, standing, walking, sleeping, driving, bending, lifting, etc., and all daily activities. She indicated that she cannot walk up stairs without assistance. During this period she worked as a day care provider, caring for four children, though she indicated that she had difficulty lifting the children. She stated that she used a VA-issued walker. These statements are credible. The medical and lay evidence of record prior to May 5, 2014 does not show that her disability is more accurately described as a forward flexion of greater than 30 degrees but not greater than 60 degrees. At worst, her forward flexion was 80 degrees and at works, her combined range of motion was 170 degrees, which falls squarely in the 10 percent criteria. Significantly, her ranges of motion were normal on initial testing at her VA examination. Although her statements regarding her functional loss are credible, the evidence does not show that her disability is more closely approximated by the 20 percent criteria. In June 2017 the Veteran's representative argued that due to the Veteran's range of motion limitations, as a result of her spine disability, her condition warrants a 40 percent rating under DeLuca. These provisions set forth in DeLuca do not require the assignment of a higher disability rating where the functional limitation due to pain does not result in limitation of motion sufficient to meet the requirements of the next higher disability rating. Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016). In this case, the functional impairment resulting from the Veteran's back disability does not more closely approximate forward flexion of the thoracolumbar spine is greater than 30 degrees. At worst, her forward flexion was 80 degrees. Further, her combined range of motion was 170 degrees, which falls squarely in the 10 percent criteria. The functional loss she reported in her lay statements does not cause her forward flexion to be more closely described as limited to 30 degrees. Additionally, she retains motion in her spine. Therefore she does not have ankylosis in any form. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). A 40 percent rating is not warranted. A disability rating of the spine also requires consideration of whether the Veteran has intervertebral disc syndrome (IVDS), or disc degeneration. IVDS is rated according to the number of incapacitating episodes. Intervertebral disc syndrome warrants a 10 percent evaluation when the veteran has incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent evaluation is warranted when the veteran has incapacitating episodes having a total duration of a least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted when the Veteran has incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when the Veteran has incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For purposes of assigning evaluations under Code 5243, an "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1 (2017). In the present case, it was noted in the June 2010 VA examination, that the Veteran had had an incapacitating episode in the previous 12 months. Episodes reportedly appeared five times per year and lasted one to two days. The examiner in this case indicated that bed rest was prescribed. The rating for IVDS with the Veteran's number of incapacitating episode, specifically, five times per year is 10 percent. Because the Veteran is presently receiving 10 percent under the General Rating Formula, application of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not more favorable. Arthritis was also noted by the examiner in the June 2010 VA examination. Therefore, consideration is also given to DC 5003, under which the disability is evaluated based upon limitation of motion of the affected part. When limitation of motion is noncompensable, a 10 percent rating is warranted when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted where there is x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a (2017). In this case, her limitation of motion is compensable and is therefore rated under the General Rating Formula. The medical and lay evidence of record does not show that the Veteran's low back disability caused neurological abnormalities that require separate ratings. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that a rating in excess of 10 percent is warranted for the Veteran's lumbosacral strain for the period prior to May 5, 2014; therefore, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 at 54-56 (1990). Period Beginning May 5, 2014 The Veteran was granted a disability rating of 20 percent for her lumbar disability effective May 5, 2014, the date of her VA examination. At her May 2014 VA examination, her condition had worsened. The examiner noted gradual progression of back pain, with no new trauma or surgery. The examiner noted: Pain now radiates from lower back down right leg to toes, down left leg. Ambulates with wheeled walker for past 1-2 years due to back [and] leg pain. Constant back pain, not characterized by flare-ups hard to walk, can[no]t carry laundry up [and] down stairs, can[no]t stand up very long, has to sit down [and] take breaks when cooking, can[no]t stand up for shower, has to use tub bench. Forward flexion was reported at 65 degrees with pain. Extension was 10 degrees with pain. Lateral rotation was 15 degrees bilaterally. Lateral flexion was 20 degrees bilaterally. She had pain throughout all range of motion testing. After repetitive motion testing, her ranges of motion remained unchanged except for extension, which decreased to 0 degrees. The Veteran did not have flare ups. The Veteran was reported to have functional loss and functional impairment of the spine with weakened movement and pain on movement. No ankylosis was found. Regarding functional loss, the examiner also noted that the Veteran "[c]an[no]t do prolonged standing, prolonged walking, lifting, climbing, carrying heavy things, or prolonged sitting." As noted, for a 20 percent rating, forward flexion of the spine must be greater than 30 degrees, but not greater than 60 degrees, or the combined range of motion must be not greater than 120 degrees. Assuming that the Veteran's combined range of motion is calculated with 0 degrees of extension (as reported by the examiner after repetitive motion testing), it would be 135 degrees, which falls squarely within the 20 percent criteria. She was noted in the examination to have muscle spasm of the thoracolumbar spine, which resulted in abnormal gait. This is also contemplated by the 20 percent criteria. The May 2014 VA examination does not show that her disability is more closely described by forward flexion to 30 degrees or less, even when considering the functional loss reported by the Veteran and the examiner. Furthermore, the Veteran remained able to move her spine. By definition she does not have ankylosis. Therefore the May 2014 VA examination does not support a 40 percent rating. The Veteran was afforded a VA examination in July 2017, following the Board's remand for compliance with the Correia decision as indicated above. Flexion was 50 degrees with no ankylosis. Her extension was 15 degrees. Right lateral flexion was 10 degrees and left lateral flexion was 15 degrees. Lateral rotation was 30 degrees bilaterally. She had pain throughout range of motion testing Passive range of motion was the same as active. The Veteran denied having flare ups. The examiner stated that pain did not result in or cause functional loss for the Veteran. She was found to have pain on weight bearing. Repetitive repetitions were performed, which indicated no additional functional loss upon three repetitions. According to this examiner, no guarding or muscle spasms were reported, no evidence of IVDS was reported. The major functional impact reported on this examination was that the Veteran's condition limited walking and standing for a prolonged period. The examiner did not find additional function loss due to pain, weakness or fatigability. This examination confirms that the severity level warrants a 20 percent evaluation. Even when considering her pain and functional impairment as set forth in DeLuca, her disability is not more closely described by the 40 percent criteria. Although the Veteran's ranges of motion had worsened since the May 2014 VA examination, her forward flexion was not more accurately described as 30 degrees or less. At worst, it was 50 degrees with pain, with no additional reduction in motion after repetitive testing. Furthermore, she did not have ankylosis. The Veteran was also noted to have IVDS of the thoracolumbar spine; however no incapacitating episodes were reported in the 12 months prior to the examination. Therefore consideration of a higher rating for IVDS is not warranted. The RO granted a separate rating for radiculopathy of the right lower extremity based upon the findings of the July 2017 VA examiner and the rating assigned is not on appeal. The medical and lay evidence of record does not show that the Veteran's low back disability causes any other neurological manifestations which require separate ratings. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for lumbosacral strain after May 5, 2014. 38 U.S.C § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, a total disability rating based on individual unemployability (TDIU) is not for consideration because the Veteran does not contend, and the evidence does not show, that her service connected disabilities renders her unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). The record shows that she is employed. ORDER A disability rating in excess of 10 percent prior to May 5, 2014, for degenerative joint disease of the lumbosacral spine with chronic lumbar strain is denied. A disability rating in excess of 20 percent from May 5, 2014 for degenerative joint disease of the lumbosacral spine with chronic lumbar strain lumbosacral strain is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs