Citation Nr: 1803691	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  14-10 787	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUES

1. Prior to July 15, 2016, entitlement to an initial rating in excess of 10 percent for thoracolumbar strain. 

2. From July 15, 2016, entitlement to an initial rating in excess of 40 percent for thoracolumbar strain.


REPRESENTATION

Veteran represented by:	James McElfresh II, Agent


ATTORNEY FOR THE BOARD

M. D'Allaird, Associate Counsel



INTRODUCTION

The Veteran served on active duty from June 2002 to January 2007.

These matters are before the Board of Veterans' Appeals (the Board) on appeal from June 2013 and August 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. 

The June 2013 rating decision granted service connection for thoracolumbar strain, rated 10 percent, effective April 12, 2011. In October 2015 the Board remanded this claim for additional development. In August 2016, the RO issued a rating decision, granting an increased rating of 40 percent, effective July 15, 2016. This did not satisfy the Veteran's appeal for an initial increased rating.

The Board also notes that on her March 2014 substantive appeal (VA Form 9), the Veteran requested a Board hearing. In February 2015, she withdrew this request; the Board considers her request withdrawn and will proceed.


FINDINGS OF FACT

1. Prior to July 15, 2016, the Veteran's thoracolumbar strain was manifested by pain, flare-ups and limitation of motion with forward flexion greater than 60 degrees but not greater than 80 degrees; it was not manifested by muscle spasms or guarding severe enough to result in an abnormal or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

2. From July 15, 2016, the Veteran's thoracolumbar strain has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine.





CONCLUSIONS OF LAW

1. The Veteran's thoracolumbar strain does not warrant a rating in excess of 10 percent prior to July 15, 2016. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2017).

2. The Veteran's thoracolumbar strain does not warrant a rating in excess of 40 percent from July 15, 2016. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act (VCAA)

VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). VA's duty to notify was satisfied by a letter in April 2011. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 

Initial rating claims arise from granted claims of service connection and do not require unique 38 U.S.C. § 5103 notice because the purpose that the notice was intended to serve is fulfilled when service connection has been granted and an initial rating has been assigned. Once the Veteran's claim of service connection was substantiated, her filing of a notice of disagreement with the RO's initial rating decision did not trigger entitlement to additional notice under 38 U.S.C. § 5103. See Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128, 136 (2008).

Neither the Veteran nor her representative has raised concerns with the duty to assist. See Scott 789 F.3d at 1381 (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 duty to assist argument).

The Veteran was afforded VA examinations in June 2013 and July 2016. The examination reports reflect that the VA examiners reviewed the Veteran's past medical history, recorded her current reports, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board finds that the VA examination reports of record are sufficient for rating purposes. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

There also was the required compliance, certainly acceptable substantial compliance, with the Board's previous remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board itself errs as a matter of law when it fails to ensure compliance); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that "substantial" rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

Accordingly, appellate review may proceed without prejudice to the Veteran with respect to her claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

Legal Criteria

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptoms with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 
Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to receive a staged rating; that is, be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 126-28.

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 for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt is resolved in the Veteran's favor. 38 C.F.R. § 4.3.

The 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. See DeLuca v. Brown, 8 Vet. App. 202 (1995).

Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating).

The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. See 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45.

The Veteran's thoracolumbar strain is rated under the General Rating Formula for Diseases and Injuries of the Spine, which provides that a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted where forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or for favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted when 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 muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. A 10 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or 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 vertebral body fracture with loss of 50 percent or more of height. 

Notes following the rating criteria provide that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 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 thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, and Notes 1 and 2.



Factual Background

Treatment records dated in March 2010 note that the Veteran's extension, lateral bending, and torsion were somewhat limited and produced some pain.

Treatment records dated in July 2010 reflect the Veteran reported chronic low back pain beginning at the age of 20. She further reported stiffness and severe pain in the morning. Normal range of motion was noted.

Treatment notes dated in February 2011 noted the Veteran could flex to about 5 inches from the floor.

In March 2011 treatment notes reflect the Veteran reported stiffness and pain, and she could flex to about 8 inches from the floor.

Treatment notes dated in July 2012 note the Veteran reported pain in her low and mid back but that it had improved overall. She reported stiffness in the morning ranging from none at all to lasting 30 minutes. Flexion to about 8 inches from the floor was noted.

In January 2013 the Veteran could flex to about 14 inches from the floor.

The Veteran was afforded a VA examination in June 2013. The Veteran reported flare-ups which impacted her ability to vacuum, sweep, or bend over towards the floor. She also reported needing help dressing herself during flare-ups. The report reflects forward flexion of 75 degrees, with objective evidence of painful motion beginning at 75 degrees. Her extension ended at 30 degrees or greater, her right and left lateral flexion was 30 degrees or greater and her right and left lateral rotation were 30 degrees or greater. The report reflects the same range of motion results following repetitive-use testing. The examination report notes functional impairment following repetitive use testing, including less movement than normal and pain on movement. The examiner also noted localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. The Veteran did not have guarding or muscle spasms. The Veteran exhibited normal muscle strength and did not have muscle atrophy. She did not exhibit signs or symptoms due to radiculopathy, or any other neurologic abnormalities. The Veteran did not have invertebral disc syndrome (IVDS). The Veteran did not use an assistive device. The examiner did note that the Veteran had pain with decreased flexibility. The examiner also noted that the Veteran's ability to stand for long periods, lifting, and carrying were impacted by her back condition. 

The Veteran was afforded another VA examination in July 2016. The Veteran reported she did not experience flare-ups or have any functional loss or functional impairments of the thoracolumbar spine. Range of motion testing revealed forward flexion of 40 degrees, extension of 15 degrees, right lateral flexion of 15 degrees, left lateral flexion of 20 degrees, and right and left rotation of 20 degrees. The report noted the Veteran exhibited pain with each range of motion and there was evidence of pain with weight bearing. The examiner also noted that there was no additional loss of function or range of motion following repetitive use testing. The examiner noted that the Veteran was not being examined immediately after repetitive use over time but the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examination report also states that pain, weakness, fatigability or incoordination does not significantly limit functional ability with repeated use over a period of time. 

The report also noted the Veteran did not have guarding or muscle spasms. The examiner did note that the Veteran experiences disturbance of locomotion, and interference with sitting and standing. The report notes normal muscle strength and no muscle atrophy. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. The examiner did note favorable ankylosis of the entire thoracolumbar spine. The Veteran did not have any other neurologic abnormalities, nor did she have IVDS. She did not use an assistive device. The examiner further noted the Veteran's ability to sit for prolonged periods of time, stand or walk for more than ten minutes, and bend or lift more than 20 pounds was limited by her back pain and stiffness. 


Analysis

Based on a thorough review of the evidence of record, the Board finds that prior to July 15, 2016 the preponderance of the evidence is against a finding that the Veteran's symptoms more nearly approximated a 20 percent, or higher, evaluation. The June 2013 VA examination showed the Veteran had forward flexion of 75 degrees with a combined range of motion of 225 degrees. The forward flexion was not greater than 30 degrees but less than 60 degrees and the combined range of motion was not limited to 120 degrees, as required for a 20 percent rating. In addition, the Veteran did not have muscle spasms or guarding, alternative requirements for a 20 percent rating. 

From July 15, 2016, the preponderance of the evidence is against a finding that the Veteran's symptoms more nearly approximated a 50 percent, or higher, evaluation. Significantly, on the occasion of the VA examination in July 2016, the Veteran's thoracolumbar flexion was to 45 degrees, without pain. The examiner noted that after repetitive use testing, her range of motion was the same. Thus, forward thoracolumbar flexion has not been limited to less than 30 degrees as required for the 40 percent rating. In addition, while there was evidence of favorable ankylosis of the entire thoracolumbar spine, there was no evidence of unfavorable ankylosis of the entire thoracolumbar spine as required for a 50 percent rating. 

In regard to the DeLuca criteria, there is no medical evidence to show that there is any additional loss of motion of the thoracolumbar spine due to pain or flare-ups of pain, supported by objective findings, or due to excess fatigability, weakness or incoordination, to a degree that supports a rating in excess of 10 percent prior to July 15, 2016. The examiner found no additional limitations of range of motion following repeat testing. The Veteran's forward flexion was 75 degrees before and after repeat testing. The examiner did note pain on movement and less movement than normal, but forward flexion did not change. 

Application of the Deluca criteria also fails to support a rating in excess of 40 percent from July 15, 2016. The Board recognizes the Veteran's complaints of pain and functional loss as a result of her thoracolumbar strain, notably her difficulty walking and standing. However, the competent and probative evidence of record does not indicate functional loss due to the Veteran's low back disability that would more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine. As noted above, during the July 2016 VA examination, the Veteran's forward flexion of the thoracolumbar spine was 45 degrees before and after repeat testing.

Accordingly, a rating in excess of 10 percent prior to July 15, 2016 and in excess of 40 percent from that date for the Veteran's service-connected thoracolumbar strain is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert, supra.

The Board notes that this decision does not leave the Veteran without recourse.  If her service-connected thoracolumbar strain becomes more disabling in the future, she is free to file a claim for an increased rating at that time.


ORDER

Entitlement to an initial rating in excess of 10 percent prior to July 15, 2016 for thoracolumbar strain is denied.
	
Entitlement to an initial rating in excess of 40 percent from July 15, 2016 for thoracolumbar strain is denied.




____________________________________________
VICTORIA MOSHIASHWILI
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs