Citation Nr: 1803403 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 09-33 326 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a rating in excess of 20 percent for degenerative disc disease of the thoracolumbar spine from June 10, 2008. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel INTRODUCTION The appellant served on active duty with the United States Army from February 1974 to February 1977 and from November 1986 to February 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. This case was previously before the Board in September 2014, March 2016, and May 2017. In each of these instances, the issue was remanded for deficiencies in the examination. Most recently in May 2017, the Board remanded the issue of degenerative disc disease of the thoracolumbar spine for a new examination that would be in compliance with the decision of the U.S. Court of Appeals for Veterans Claims (Court) in Correia v. McDonald. 28 Vet. App. 158 (2016). The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the remand orders, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd Dyment v. Principi, 287 F.3d 1377 (2002). Neither the appellant nor his attorney has argued otherwise. FINDING OF FACT The appellant's service-connected thoracolumbar degenerative disc disease is manifested by limitation of motion with significant pain and functional loss. However, at no time during this period did he exhibit: 1) forward flexion of the thoracolumbar spine to 30 degrees or less, 2) favorable ankylosis of the entire thoracolumbar spine, or 3) incapacitating episodes of intervertebral disc syndrome (IVDS), totaling at least 4 weeks, but no more than 6 weeks, during the past 12 months. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for degenerative disc disease of the thoracolumbar spine have not been. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 2541 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Neither the appellant nor his representative has raised any issues with the duty to notify or 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). Applicable Law Disability evaluations are determined by the application of a schedule of ratings, which is based on the veteran's average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life, including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology, and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Limited movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, and interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The standard of proof to be applied in a decision on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. §5107(b); see also 38 C.F.R. §§ 3.102, 4.3. "This unique standard of proof is in keeping with the high esteem in which our nation holds those who have served in the Armed Services. It is in recognition of our debt to our veterans that society has through legislation taken upon itself the risk of error when, in determining whether a veteran is entitled to benefits, there is an 'approximate balance of positive and negative evidence.' By tradition and by statute, the benefit of the doubt belongs to the veteran." Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Analysis The appellant asserts that his service-connected degenerative disc disease of the thoracolumbar spine is more severe than reflected by the rating of 20 percent currently in effect because of the significant pain he feels on a daily basis. The criteria for evaluating disabilities of the spine are contained in a General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5242 (pertaining to degenerative arthritis of the spine). That formula provides that 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 are assigned: a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or the 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 an 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 assigned 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 assigned for forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2017). Several notes to the General Rating Formula for Diseases and Injuries of the Spine provide additional guidance. Under Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Under Note (2): For VA compensation purposes, 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 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 of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. 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. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2017). Applying the facts in this case to the applicable legal criteria, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for the appellant's degenerative disc disease of the thoracolumbar spine. The appellant's claim for an increased rating was received by VA on June 10, 2008. In connection with the claim, the appellant was scheduled for a VA examination later in June 2008. At that examination, the appellant had range of motion of the thoracolumbar spine of 0-70 degrees in flexion, of 0-12 degrees in extension, of 0-18 degrees in left lateral flexion, of 0-18 degrees in right lateral flexion, of 0-18 degrees in left lateral rotation, and of 0-20 degrees in right lateral rotation. After repetitive use, the appellant's range of motion was 0-54 degrees in flexion, 0-14 degrees in extension, 0-16 degrees in left lateral flexion, 0-14 degrees in right lateral flexion, 0-16 in left lateral rotation, and 0-18 degrees in right lateral rotation. No objective pain was noted during the examination or during range of motion testing except for a slight grunt in forward flexion. He was not found to have any ankylosis of the spine. While it was noted that the appellant did experience flare ups of his condition which included symptoms of sharp pain in the back relieved by pain medicine and rest, the examiner stated that it would require speculation to determine what kind of functional loss resulted from these flare ups. The appellant was not found to have any secondary issues such as incontinence or radicular or neurological pain as a result of his disability. The examiner's overall assessment of the appellant's condition was that it was mild. At this June 2008 examination the appellant reported a constant dull aching pain in his lumbar area which increased after prolonged sitting and movement. He conveyed that he was able to perform all the normal activities of daily living unassisted, except that he used a long shoehorn to get his shoes on and that he needs assistance tying his shoelaces. While he did state that he needed six days of bedrest in the previous 12 months, the appellant acknowledged that it was not physician prescribed. The appellant was examined again in November 2009. At that examination, the appellant had range of motion of the thoracolumbar spine of 0-54 degrees in flexion, 0-14 degrees in extension, 0-14 degrees in left lateral flexion, 0-15 degrees in right lateral flexion, 0-10 degrees in left lateral rotation, and 0-10 degrees in right lateral rotation. There was no change in range of motion after repetitive use. No objective signs of pain were noted, except for a slight pain at the end of forward flexion. The appellant did not have ankylosis. While he was noted to have flare-ups of his condition that were linked to changes in the weather and which caused increased pain, the examiner found it would be speculative to estimate his range of motion or functionality during those periods. The appellant was not found to have any secondary issues such as incontinence or radicular or neurological pain as a result of his disability. At this examination, the appellant reported that he performed all the activities of daily living without assistance, though he noted that he sometimes used a walking cane and had installed safety bars in his bathroom at home. While the appellant stated that he had to be on bed rest about two days a month over the previous year, it was not physician prescribed. The appellant was examined again in May 2015. At that examination, the appellant had range of motion of the thoracolumbar spine of 0-65 degrees in forward flexion, 0-15 degrees in extension, 0-25 degrees in left lateral flexion, 0-25 degrees in right lateral flexion, 0-30 degrees in left lateral rotation, and 0-30 degrees in right lateral rotation. The appellant was noted to have no pain in weight bearing and no loss of range of motion after repetitive use. No ankylosis was noted. Regarding periods of flare-ups or repetitive use over time, the examiner was not able to give any indication of potential range of motion loss without resorting to speculation because the appellant was not being observed in either scenario. However the examiner did note that the examination was neither medically consistent nor inconsistent with the appellant's statements describing functional loss during flare ups or after repeated use over time. The appellant was not found to have any secondary issues such as incontinence or radicular or neurological pain as a result of his disability. At this examination, the appellant reported that he had pain in his back that was worse at times and required fairly frequent positions changes during sitting, standing, or walking. He also stated that he avoids lifting heavy objects and is careful when he bends and lifts. He reported no other functional loss during flare ups and he reported no instances where he needed physician prescribed bedrest. The appellant was again examined in April 2016. At that examination, the appellant had range of motion of the thoracolumbar spine of 0-70 degrees in forward flexion, 0-20 degrees of extension, 0-15 degrees of left lateral flexion, 0-20 degrees of right lateral flexion, 0-25 degrees of left lateral rotation and 0-25 degrees of right lateral rotation. While pain in range of motion was noted on examination, it did not result in any functional loss. Repetitive use testing did not show any loss of range of motion. The appellant had no pain in weight bearing and was not noted to have any ankylosis. Regarding periods of flare-ups or after repeated use over time, the examiner found that it would be speculative to give a range of motion measurement or assessment as to loss of functionality because the appellant was not being tested under those conditions. The examiner explained that while his repetitive use testing showed no loss of range of motion or functionality, this was not conclusive evidence with regards to use over time and making any finding on the periods of flare-ups or repeated use over time would require speculation unless the appellant was measured at those times. The appellant was not found to have any secondary issues such as incontinence or radicular or neurological pain as a result of his disability. At this examination, the appellant reported that his symptoms included constant back pain that was worse in the morning, while bending over, and walking. The only symptom he reported as occurring during flare-ups was increased pain. The appellant did not describe any periods that required physician prescribed bedrest. The appellant was most recently examined in August 2017. At that time, the examiner, in compliance with the Board's most recent remand, reviewed all of the appellant's prior VA examination results to determine to what extent any of the results might have been different if the conducted after the Court's ruling in Correia. The examiner reviewed all the previous VA examinations and found that opposite joint testing was not possible because the spine does not have an opposite joint. Regarding pain in weight bearing and non-weight bearing situations, the examiner noted that no pain was recorded in prior examinations while the appellant was walking or sitting and that he had a normal gait and normal walk point which leads to a finding that there was no objective pain in either weight bearing or non-weight bearing positions. The examinations from May 2015 and April 2016 clearly state that there was no pain in weight bearing. Further, the examiner stated that passive range of motion testing was not medically appropriate to perform due to a risk of causing injury to the appellant. After reviewing the prior examinations, the appellant was given an examination in August 2017. At that time, the appellant had range of motion of 0-60 degrees in forward flexion, 0-20 degrees in extension, 0-15 degrees in left lateral flexion, 0-20 degrees in right lateral flexion, 0-25 degrees in left lateral rotation, and 0-20 degrees in right lateral rotation. No objective or subjective pain was noted with non-weight bearing or weight bearing at this examination. There was also no evidence of ankylosis. There was no pain on examination, and repetitive use did not cause any additional loss of function or range of motion. Regarding periods of flare-ups or repeated use over time, the examiner noted that while the current findings were neither medically consistent nor inconsistent with the appellant's reported symptoms during these periods, it would be speculation to provide an opinion on any objective functional loss or range of motion during these periods. The appellant was not found to have any secondary issues such as incontinence or radicular or neurological pain as a result of his disability. At this examination, the appellant reported that his back pain is constant, but that it fluctuates in severity. He stated that he controls it using ibuprofen and naproxen. While he stated he felt his left leg was weaker, he did not describe any sensory loss, tingling, numbness, or motor deficits in his legs. He also did not describe any periods that required physician prescribed bedrest. While the appellant has consistently reported pain and difficulty in movement as a result of his low back disability, the examination reports delineated above do not establish that he exhibits symptoms which would entitle him to a rating in excess of 20 percent under the General Rating Formula for Diseases and Injuries of the Spine, including forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. VA examination results have indicated that the forward flexion of his thoracolumbar spine, even as limited by pain, weakness, fatigability or incoordination after repetitive use, has never been less than 54 degrees (June 2008 and November 2009 examinations). Moreover, examinations have affirmatively shown that he does not have ankylosis or the indicia of ankylosis such as difficulty walking because of a limited line of vision or gastrointestinal symptoms due to pressure of the costal margin on the abdomen. See 38 C.F.R. § 4.71a, General Rating Formula for Disease and Injuries of the Spine, Note (5). The Board has considered the implications of the recent decision in Correia, in which the Court held that 38 C.F.R. § 4.59 creates range of motion testing requirements with which VA must comply. 28 Vet. App. 158 (2016). However, the August 2017 VA examination specifically addressed Correia considerations in rendering findings and even applied them retroactively to previous examinations. The results were that there was no objective or even subjective signs of pain in weight bearing and non-weight bearing situations during the examinations. The appellant made statements that his back hurt constantly, but this was not supported by clinical findings. The Board has also considered additional limitation of function due to pain on range of motion and during flare-ups. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Sharp v. Shulkin, 29 Vet. App. 26 (2017); DeLuca, 8 Vet. App. at 206-07. The record includes the appellant's statements that he is in constant pain, to varying degrees, because of his back and that he experiences flare-ups of the condition that include a worsening of his pain. The Board finds his statements to be credible but the appellant does not describe any specific functional loss during flare ups, only an increase in pain. After repeated use over time, he has stated that he'll need to change positions. Otherwise, the record does not support a conclusion that his limitations of motion are substantially greater in these circumstances, such that his flare-ups would produce symptoms which more nearly approximate 30 degrees or less of flexion or favorable ankylosis of the entire thoracolumbar spine. The record is clear that the appellant experiences significant pain. However, as explained above, pain itself does not constitute functional loss. Rather, the pain must produce functional loss which results in disability which more nearly approximates the higher rating, which has not been demonstrated here. At his last three examinations, repetitive use testing did not establish any decrease in mobility or range of motion for the appellant which would meet the criteria for a higher rating. Further, the appellant has not described any additional functional loss produced by the flare-ups of his pain which would meet the criteria for a higher rating. After reviewing the record, the Board concludes that the objective evidence does not reflect the functional equivalent of symptoms, supported by adequate pathology, required for the assignment of a rating in excess of that assigned herein based on functional loss due to pain, incoordination, weakness, or fatigue. The Board has considered whether separate ratings are warranted for any associated objective neurological abnormalities, or any other conditions which might be secondary to the appellant's thoracolumbar disability. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). The record does not indicate, and the appellant has not claimed, that he experiences any neurologic abnormalities associated with his service-connected thoracolumbar disability for which a separate compensable rating would be warranted. The Board has also considered whether the appellant is entitled to a rating in excess of 20 percent for the period under Diagnostic Code 5243. 38 C.F.R. § 4.71a, Diagnostic Code 5243. In addition to the General Rating Formula for Diseases and Injuries of the Spine, intervertebral disc syndrome may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that when intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months, a 10 percent rating is assigned. When incapacitating episodes have a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, a maximum 20 percent rating is assigned. When incapacitating episodes have a total duration of at least 4 weeks but less than 5 weeks during the past 12 months, a maximum 40 percent rating is assigned. Note (1) following 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017) provides that 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. In this case, the Board finds that these criteria have not been met for any period of the claim. While the appellant has reported at times that he has used bed rest to self-treat his disability, the record does not contain, and he has not claimed, any periods of physician prescribed bed rest. Under these circumstances, Diagnostic Code 5243 does not avail the appellant of a rating in excess of 20 percent. Finally, the appellant has stated that it is his belief that his thoracolumbar disability is worse than it is currently rated. The Board finds that the appellant is competent to testify about symptoms he has experienced and that his statements of pain are credible. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, while in some cases a layperson is competent to offer an opinion addressing the severity of a disorder, the Board finds that, in this case, the determination of the severity of the appellant's back disability is a medical question not subject to lay expertise. Jandreua v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Determining the severity of the condition involves testing and interpretation of measurements that require medical training, expertise, and experience. While the appellant is capable of stating that he is in pain and what functional loss that pain might produce, the Board finds that the medical opinions provided outweigh the appellant's lay opinion. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). In any event, the appellant's lay statements of pain, without a description of functional loss, do not meet the criteria for a rating in excess of 20 percent. The appellant has not raised any other issues with respect to the increased rating claim for his thoracolumbar disability, nor have any other assertions been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). ORDER Entitlement to a rating in excess of 20 percent for degenerative disc disease of the thoracolumbar spine is denied. ____________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs