Citation Nr: 1805882 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-13 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased rating for the Veteran's service-connected low back disability, currently rated as 10 percent disabling. ATTORNEY FOR THE BOARD P. Stephan, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1994 to November 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The RO is the Agency of Original Jurisdiction (AOJ) in this claim, and denied the benefits sought on appeal. The issue on appeal was remanded by the Board in October 2015 to schedule the Veteran for a VA examination to determine the nature and severity of his service-connected low back disability. In response, the AOJ scheduled a VA examination in January 2016, for which the Veteran did not report. The AOJ subsequently issued a supplemental statement of the case and returned the claim to the Board. The AOJ has substantially complied with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's low back disability has been manifested by forward flexion greater than 60 degrees with pain and tenderness and no additional functional impairment due to pain, flare-ups, ankylosis, or incapacitating episodes. CONCLUSION OF LAW The criteria for an increased disability evaluation in excess of 10 percent for a low back disability have not been met or approximated. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71(a) (2017); Diagnostic Code 5242-5237 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The VA's duty to notify was satisfied by letters sent by the AOJ in August 2011. The Veteran has not alleged any error in the VCAA notice, and the VA has fulfilled its duty to notify. Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The VA has also satisfied its duty to assist. The VA has undertaken appropriate actions to obtain all evidence relevant to this claim. The AOJ has secured the Veteran's service treatment records (STRs), VA treatment records, Social Security records, and all identified and available private treatment records. The Veteran has submitted personal statements. The Veteran's was previously afforded VA examinations for his lumbar spine in June 1995 and September 2011. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). In light of the Veteran's claim for an increased rating, the Board remanded this claim in October 2015 for a more contemporaneous VA examination to determine the severity of the Veteran's service-connected low back disability. However, the Veteran did not appear for that examination as scheduled in January 2016 and did not provide any reason for not reporting for the scheduled examination. 38 C.F.R. § 3.327(a). As the Veteran did not appear for that VA examination, any potentially helpful evidence from that examination is not available. Therefore, the Board will evaluate the claim based on the evidence of record. 38 C.F.R. § 3.655. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. § 4.1. Each Diagnostic Code (DC) in the Rating Schedule corresponds to a disability. The ratings under the codes are intended to compensate the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.10, 4.2. When there is a question as to which evaluation should be applied to a Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's degenerative joint disease of the lumbar spine is currently rated under DC 5237 of the General Rating Formula for Diseases and Injuries of the Spine for lumbosacral strain. Other relevant diagnostic codes include 5242 for degenerative arthritis of the spine, as well as DC 5243 for intervertebral disc syndrome (IVDS), rated based on incapacitating episodes. For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. However, the 2011 VA examiner noted the Veteran did not have IVDS, and no ankylosis of the spine was noted. Therefore the Veteran does not qualify for a rating under DC 5243. As for DC 5242, degenerative arthritis of the spine, for the next highest rating of 20 percent, the following criteria must be met: x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. This rating cannot be combined with ratings based on limitation of motion. The Veteran's October 2011 x-ray results show a normal lumbar spine, with modest to moderate narrowing at the lower levels, and surgical clips in the medial aspect of the right lower quadrant. Neither the x-ray results nor the 2011 VA examination show any incapacitating exacerbations. Therefore the Veteran does not qualify for a higher rating under DC 5242. Therefore, the Board will continue to evaluate the Veteran's disabilities under Diagnostic Code 5237, as it is supported by explanation and evidence, and provides the potential for the most favorable rating for the Veteran. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). The next highest rating of 20 percent under the Veteran's current diagnostic code (DC 5237) establishes the following criteria: A forward flexion of the thoracolumbar spine to 60 degrees or less; a combined range of motion to 120 degrees or less; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A higher rating of 30 percent requires: a forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Ratings of 50 or 100 percent require: unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine, respectively. Diagnostic Codes 5235-5243 include consideration of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71(a). When an evaluation of a disability is based on 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 such as more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. §§ 4.40 and 4.45; Johnston v. Brown, 10 Vet. App. 80, 85 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). As stated above, the Veteran was scheduled for re-examination in January 2016 pursuant to the October 2015 Board remand to determine the severity of his low back disability in light of evidence that his disability has worsened since the last VA examination. However, the Veteran did not report for the scheduled examination and did not provide any reason for not reporting for the scheduled examination. Therefore, the Board will evaluate the claim based on the evidence of record. The 2011 VA examination of the Veteran's lumbar spine shows forward flexion from 0 to 90 degrees, showing no change from 90 degrees in June 1995, the Veteran's previous examination that included measurements on his low back disability. This range does not meet the 60 degree requirement contemplated by a higher rating. Extension was observed from 0 to 30 degrees, showing no change from 30 degrees in June 1995. Right lateral flexion was reported from 0 to 30 degrees, and left lateral flexion was reported from 0 to 25 degrees. Bilateral rotation was reported from 0 to 20 degrees. Lateral movements were slightly lower than in June 1995, but are not considered numerically in any of the increased rating criteria. Therefore, as the Veteran's range of flexion exceeds 60 degrees based on the most recent diagnostic results, an increased rating based on limitation of motion is not warranted. There is no basis in the objective medical evidence for the assignment of any higher ratings for the lumbar spine disability based on functional factors. 38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca, 8 Vet. App. at 204-07. The record range of motion findings recorded during the Veteran's examinations contemplate the Veteran's reported pain during examination. In this regard, no pain was noted on examination in movement. Although pain may cause functional loss, pain itself does not constitute functional loss. In order to constitute functional loss, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance." Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). In reaching this conclusion, the Board has considered the functional limitations reported by the Veteran. The Veteran reported limited ability to walk, stiffness, fatigue, decreased motion, numbness, and weakness of the leg and foot. The Veteran did not report falls due to his back, spasms, paresthesia, bladder or bowel problems, erectile dysfunction. Veteran reports constant, moderate low back pain since 1994 that travels to his legs, exacerbated by physical activity. Treatment includes rest and prescription painkillers. The Veteran's flare-ups include weakness and limitation of motion of the joint. He also reports arthritis. However, the lay testimony as well as medical evidence reflecting pain and loss of function militates against a rating higher than the assigned 10 percent. That is, the Veteran's report of symptoms do not show the functional equivalent of a loss of forward flexion to 60 degrees or less or ankylosis of the thoracolumbar spine. The 10 percent disability rating properly compensates the Veteran for the extent of functional loss resulting from the above symptoms of his lumbar spine disability because the evidence of pain and functional loss does not approximate the next highest rating. The Board further notes that the record does not show any muscle spasms or guarding, and no medical evidence of an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis as contemplated by a higher evaluation. In reaching this conclusion, the Board notes that the recent May 2011 VA examiner observed localized tenderness in the Veteran's left lumbar area resulting in loss of spinal contour; however, the examiner specifically noted that there was no abnormal gait, no muscle spasms and no guarding. Moreover, the Veteran's tenderness and spinal contour symptoms are expressly contemplated by the 10 percent evaluation currently assigned. The Board has considered the application of various regulations, whether or not they were raised by the Veteran, to include the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 38 C.F.R. §§ 4.1, 4.2, 4.41 (2016); Peyton v. Derwinski, 1 Vet. App. 282 (1991); Powell v. West, 13 Vet. App. 31, 34 (1999). No addressable neurological issues have been raised by the objective medical evidence or lay statements. The Rating Schedule provides for evaluating any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate Diagnostic Code. 38 C.F.R. § 4.71(a); Diagnostic Codes 5235-5243, Note 1 (in effect after September 26, 2003). Testing results from the 2011 VA examination showed muscle strength, atrophy, reflexes, and sensory responses were all normal. There were no sensory deficits, no motor weakness, and no pathologic reflexes for the Veteran's thoracolumbar spine. The Veteran has not experienced any incontinence symptoms. As such, a separate rating for bowel or bladder impairment is not warranted. The Veteran has not contended, and the record does not otherwise suggest, that he is unemployable as a result of his service-connected lumbar spine disabilities. He has been separately granted a total disability in unemployment (TDIU) entitlement based on his service-connected psychiatric disorder. Accordingly, the issue of entitlement to total disability due to individual unemployability has not been raised in this claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). Comparing the Veteran's symptomatology to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate. A veteran may be entitled to consideration under 38 C.F.R. § 3.321(b) for referral for an extraschedular evaluation based on either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities, when the "collective impact" or "compounding negative effects" of disabilities are exceptional and not adequately captured by the schedular ratings. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). In other words, if the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008); see Yancy v. McDonald, 27 Vet. App. 484 (2016); see also Doucette v. Shulkin, 28 Vet. App. 366 (2017). In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. The Veteran's other service-connected disability is a psychiatric disorder to include depressive disorder, polysubstance abuse, and post-traumatic stress disorder. This other disability was not noted in combination with the Veteran's service-connected low back disability to create an exceptional circumstance outside of the schedular ratings by the objective medical evidence, or from lay testimony. Further, the manifestations of the Veteran's spinal disability include pain that comes from normal use as well as flare-ups, and functional loss in fatigue and decreased motion. The rating schedule contemplates all symptoms resulting in functional impairment, and the Veteran's manifestations are contemplated in the relevant rating criteria. Therefore the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a disability evaluation in excess of 10 percent for the Veteran's low back disability is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs