Citation Nr: 1802445 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-30 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an evaluation in excess of 40 percent for degenerative disc disease (DDD) at L4-5 and L5-S1 prior to March 19, 2016 and in excess of 50 percent for spinal stenosis with degenerative disc disease thereafter. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD B. Lewis, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from September 1976 to September 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama which denied a rating in excess of 40 percent for DDD at L4-5, L5-S1. In September 2015, the Veteran was afforded a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. This appeal was previously before the Board in January 2016. The Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development. In a subsequent March 2016 rating decision, the AOJ granted service connection for spinal stenosis with degenerative disc disease, previously rated as degenerative disc disease at L4-5, L5-S1, with an evaluation of 50 percent effective March 19, 2016. However, as this grant does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. FINDINGS OF FACT 1. Prior to March 19, 2016, the evidence of record fails to establish that the Veteran's lower back condition (characterized as degenerative disc disease at L4-5 and L5-S1) manifested unfavorable ankylosis of the entire thoracolumbar spine. 2. The Veteran's current spinal stenosis with degenerative disc disease is manifested by unfavorable ankylosis of the entire thoracolumbar spine. 3. At no time during the appeal period has the Veteran's lower back condition been manifested by unfavorable ankylosis of the entire spine. CONCLUSIONS OF LAW 1. Prior to March 19, 2016, the criteria for a disability rating in excess of 40 percent for degenerative disc disease at L4-5 and L5-S1 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5242 (2017). 2. From March 19, 2016, the criteria for a disability rating in excess of 50 percent for spinal stenosis with degenerative disc disease have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5238 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. § 5103 (a) (2012); 38 C.F.R. § 3.159 (b) (2017). In regards to increased rating claims, VA is required to provide the Veteran with generic notice - that is, the type of evidence needed to substantiate the claim. This includes 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). The Board has previously noted that in this case there is nothing prior to March 2007 contained within VBMS. Additionally, a March 2009 Board decision is not contained in VBMS, but was obtained through a search of computerized records elsewhere. In the January 2016 remand, the Board instructed the RO to obtain these outstanding records and associate them with the Veteran's electronic claims file. The RO requested the Veteran's complete records but received a negative response in August 2016 which stated "claims folder is no record at RMC. Please establish a rebuilt folder." See August 2016 Email Correspondence. To this end, the Board notes that the VBMS does not contain a notice under the VCAA prior to December 2012. A December 2012 VCAA letter regarding the Veteran's separate claim for right leg numbness indicated that after conducting an extensive search, the RO was unable to locate the Veteran's original claims folder and were thus "rebuilding" his claims folder. See December 2012 VCAA Letter. A subsequent June 2013 VCAA letter indicated that the RO was working on the Veteran's appeal of the May 2010 Rating Decision, but was unable to locate a Notice of Disagreement (NOD) filed by the Veteran in November 2010. The RO requested that the Veteran submit a copy of his NOD and any additional evidence. See June 2013 VCAA Letter. No further action on this matter is warranted as there is sufficient evidence of record to adequately evaluate the severity of the Veteran's disability as detailed below. VA has a duty to provide assistance to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. Some of the Veteran's personnel records, some of his STRs, and his post-service VA treatment records have been obtained. The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disorder currently on appeal. Therefore, the Board does not need to make an attempt to obtain these records. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The record indicates that the Veteran was afforded VA examinations with medical opinions in March 2010 and March 2016, the results of which have been included in the claims file for review. The examinations involved a review of the claims file, a thorough examination of the Veteran, and opinions that were supported by a sufficient rationale. Therefore, the Board finds that the VA examinations and medical opinions are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim. The Board is also satisfied that there has been substantial compliance with the January 2016 remand directives, which included obtaining VA records and affording the Veteran another VA examination. Although the AOJ was ultimately unable to obtain all outstanding records, as discussed above, the efforts to do so and the negative response received were documented. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); see also Stegall v. West, 11 Vet. App. 268 (1998). The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Increased Ratings Generally Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § Part 4 (2017). Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Here, the relevant evidentiary window begins one year before the Veteran filed his claim for an increased rating, and continues to the present time. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Factual Background and Analysis The Veteran's condition was previously characterized as degenerative disc disease (DDD) at L4-5 and L5-S1, assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017), and rated as 40 percent disabling from August 4, 2008 to March 19, 2016. Following the March 2016 rating decision, the Veteran's condition was recharacterized as spinal stenosis with degenerative disc disease, assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5238 (2017), and rated as 50 percent disabling. Both Diagnostic Code 5242 for degenerative arthritis of the spine and Diagnostic Code 5238 for spinal stenosis are rated under the general rating formula for diseases and injuries of the spine. The Veteran contends that he is entitled to a disability rating in excess of 40 percent prior to March 16, 2016 and in excess of 50 percent thereafter. Under the General Rating Formula for rating diseases and injuries of the spine, 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, the following ratings apply to lumbar spine disability. Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees, but not greater than 40 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 height warrants a 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017). Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the 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 warrants a 20 percent disability rating. Id. Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent disability rating. Id. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent disability rating. Id. Unfavorable ankylosis of the entire spine warrants a 100 percent disability rating. Id. Normal 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. at Note (2). Each range of motion measurement is to be rounded to the nearest five degrees. Id. at Note (4). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). The Veteran was originally awarded service connection for degenerative disc disease (DDD) at L4-5 and L5-S1in an August 2004 rating decision. He was assigned a 20 percent rating, effective January 27, 2003. A subsequent April 2009 rating decision effectuated a grant of a 40 percent disability rating for the service-connected DDD at L4-5 and L5-S1 from August 4, 2008. VA treatment records dated from 2003 to the present include records dated from 2004 to 2007 which show the Veteran was seen for low back pain and he underwent physical therapy for low back pain. A June 2011 x-ray report showed that the Veteran was seen in connection with a complaint of worsening low back pain. The examiner noted that all of the described changes were seen in the previous examination. The impression was disc space narrowing between L4 and S1 from mild degenerative disc disease. A January 2012 record showed that a musculoskeletal examination revealed tenderness and spasm over the lower lumbar paraspinals. Range of motion testing of the thoracolumbar spine revealed "decreased" flexion and normal extension. A May 2012 record showed the Veteran was fitted for a back brace. He was instructed to use the brace intermittently. Records dated from 2011 to 2014 showed complaints of low back pain for which the Veteran underwent physical therapy. A January 2014 record noted that the Veteran complained of low back pain. The musculoskeletal exam revealed tenderness and spasm over the lower lumbar paraspinals. Range of motion testing of the thoracolumbar spine revealed "decreased" motion on flexion and extension. A February 2014 record noted that results of the Veteran's MRI of the lumbar spine were as follows: mild posterior desiccation at L2-3 and L3-4 causing mild spinal stenosis and foraminal encroachments; moderate chronic desiccation at L4-5, the anulus causing moderate spinal stenosis and severe bilateral foraminal encroachments; and moderate desiccation at L5-S1 causing mild spinal stenosis and majority foraminal encroachments. An October 2015 primary care note showed the Veteran complained of back pain that he managed with medication but he denied pain on palpation of his back. In regard to VA examinations, the Veteran was afforded a VA examination in March 2010. He described symptoms of decreased motion, stiffness, weakness, spasms, and pain in his lower back. He further indicated that he was in physical therapy for treatment and took naproxen as needed for pain. The Veteran described sharp moderate pain that occurred daily and lasted for months. He reported no radiating pain and no incapacitating episodes of the spine. He indicated that he was unable to walk more than a few yards and used a cane and a brace. See March 2010 VA Examination. Physical examination of the spine revealed normal posture, head position, and gait. There were no abnormal spinal curvatures. There were no objective abnormalities of the thoracic sacrospinalis. Detailed spinal motor examination was normal for both right and left, muscle tone was normal, and there were no signs of muscle atrophy. Thoracic lumbar spine range of motion showed flexion of 0 to 10 degrees, extension of 0 to 5 degrees, left and right lateral flexion of 0 to 10 degrees, and left and right lateral rotation of 0 to 10 degrees with no objective evidence of pain and no additional limitation of motion with 3 repetitions. X-ray impressions revealed disk degeneration at L4 to 5 and at L5 to S1 with marginal osteophytes at multiple other levels. The examiner diagnosed disk degeneration at L4 to 5 and at L5 to S1 with marginal osteophytes at multiple other levels. The effect on daily activities demonstrated that the condition prevented the Veteran from sport activities, severe effects on exercise, moderate effects on chores, and mild effects on shopping and recreation. Notably, there were no signs of cervical spine or thoracolumbar spine ankylosis. Id. The May 2010 rating decision continued the Veteran's 40 percent disability rating because a higher evaluation of 50 percent is not warranted unless there is unfavorable ankylosis of the entire thoracolumbar spine. At the September 2015 travel Board hearing the Veteran's service representative stated that the Veteran's service-connected low back disorder had worsened since his last VA spinal rating examination in 2010 and that he now ambulated with the use of a cane and had spinal ankylosis. See September 2015 Hearing Transcript. Additionally, he was bedridden and incapacitated for several days or even weeks due to his low back disorder. Id. at page 3. The Veteran testified that he should have back surgery, although as yet he had not had surgery. Id. at page 5. His wife testified that she had to assist him in many activities of daily living. Id. at page 6. He testified that he continued having numbness and tingling down his right leg, and had both occupational and physical therapy for disabilities of the cervical and lumbosacral spinal segments. Id. at page 7. He testified that accommodations were made for him at his place of employment. Id. at page 10. Following the Veteran's assertions that his condition had worsened, he was afforded a VA examination in March 2016. The examiner rendered diagnoses of degenerative disc disease, lumbar radiculopathy, and spinal stenosis. The Veteran reported a history of low back problems dating back to 1977 when he injured his back playing football. He reported no back surgeries but asserted that he had low back pain all the time, used a back brace, and takes cyclobenzaprine. The Veteran reported that sometimes the pain is sharp and that he experienced sharp pain in front of his thighs, going past his knees, approximately three times a week. The Veteran reported using a cane and having trouble straightening up in the morning. Movement increases pain and the Veteran reported that he is unable to do household work and needed help putting on his pants. The Veteran walked with his back bent forward and reported that his wife helped him with dressing and undressing. See March 2016 VA Examination Report. Functional loss was noted as difficulty walking and difficulty straightening up. The examiner noted abnormal range of motion with forward flexion of 40 to 55 degrees. Range of motion itself contributed to functional loss in that the Veteran had very little movement in the back and movement was associated with pain. Forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation all exhibited pain upon examination. There was evidence of pain on weight bearing and objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The examiner noted tenderness of the entire back associated with spasm. Id. Pain, weakness, fatigability, and incoordination significantly limit functional ability with repeated use over time. Factors causing this functional loss were noted as pain, fatigue, weakness, and lack of endurance. The Veteran was noted to have muscle spasm of the thoracolumbar spine with muscle spasm and localized tenderness resulting in abnormal gait or abnormal spinal contour. No guarding was noted. The Veteran exhibited unfavorable ankylosis of the entire thoracolumbar spine. The Veteran did not have Intervertebral Disc Syndrome (IVDS) of the thoracolumbar spine. Id. The Board finds that the Veteran's low back condition was appropriately evaluated as 40 percent disabling prior to March 19, 2016 and as 50 percent disabling thereafter. The objective findings of record do not reflect unfavorable ankylosis of the entire thoracolumbar spine prior to March 19, 2016 to warrant a higher evaluation under Diagnostic Code 5242. Notably, in addition to range of motion on flexion to 30 degrees or less, a 40 percent rating also contemplates favorable ankylosis of the thoracolumbar spine which exists when the low back is fixed in a neutral position. The first finding of unfavorable ankylosis of the entire thoracolumbar spine was in the March 2016 VA examination. Accordingly, the Veteran's condition was then evaluated as 50 percent disabling. There are no objective findings of record that demonstrate that the Veteran has unfavorable ankylosis of the entire spine which is required to warrant entitlement to the next highest rating of 100 percent. Thus, the preponderance of the evidence is against the claim for a rating in excess of 40 percent for degenerative disc disease at L4-5 and L5-S1 prior to March 19, 2016 and in excess of 50 percent for spinal stenosis with degenerative disc disease thereafter. The Board has carefully considered the Veteran's lower back condition in light of DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) (providing that VA may, in addition to applying schedular criteria, consider granting a higher disability rating when functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination is demonstrated, to include during flare-ups and with repeated use, if those factors are not contemplated in the rating criteria); 38 C.F.R. §§ 4.40, 4.45 (2016). The Board notes that the Veteran's previous 40 percent rating for DDD at L4-5 and L5-S1 and current 50 percent rating for spinal stenosis with degenerative disc disease subsume the criteria associated with the maximum schedular rating for loss of range of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017) (assigning a 40 percent rating for forward flexion of the thoracolumbar spine to 30 degrees or less). Where the Veteran is already receiving the maximum disability rating for limitation of motion, 38 C.F.R. §§ 4.40 and 4.45 are not applicable. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Therefore the only questions before the Board were whether or not the Veteran had unfavorable ankylosis of the entire thoracolumbar spine prior to March 19, 2016 and whether he had unfavorable ankylosis of the entire spine, thereafter. In regard to the Veteran's contention that he has experienced episodes of back pain in which he was bedridden and incapacitated for several days or even weeks, a review of treatment records does not reflect any physician prescribed bed rest as required under the rating criteria. Thus, evaluating the Veteran's disability under the alternative Formula for Rating IVDS based on Incapacitating Episodes is not appropriate. In so finding all of the above, the Board notes that the Veteran is competent to report on symptoms and credible to the extent that he believes he is entitled to a higher rating for his disability. His competent and credible lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of the back impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. In conclusion, the evidence of record does not demonstrate that the Veteran had unfavorable ankylosis of the entire thoracolumbar spine prior to March 16, 2016. Furthermore, the evidence of record does not indicate that the Veteran currently has unfavorable ankylosis of the entire spine. Therefore, the Veteran's claim for an increased rating must be denied. ORDER Entitlement to an evaluation in excess of 40 percent for degenerative disc disease at L4-5 and L5-S1 prior to March 19, 2016 and in excess of 50 percent for spinal stenosis with degenerative disc disease thereafter is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs