Citation Nr: 1805990 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 13-24 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating greater than 20 percent for a service-connected lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel FINDING OF FACT The Veteran's lumbar spine disability manifested as flexion to 50 degrees and extension to 25 degrees with no evidence of ankylosis. CONCLUSION OF LAW The criteria for an initial rating greater than 20 percent for a service-connected lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 5237 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1962 through March 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans Law Judge (VLJ) in an October 2016 videoconference hearing. A transcript is of record. In July 2017, the Board remanded the above-listed issue for further development. That development having been completed to the extent possible, the matter is again before the Board for further appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to 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). Thus, the Board need not discuss any potential issues in this regard. Further, the Veteran has not alleged any deficiency with the conduct of his hearing before the undersigned with respect to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. The regulations pertinent to this decision (38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71(a)) were initially provided in the July 2013 Statement of the Case and December 2017 Supplemental Statement of the Case. Since he has had adequate notice of the pertinent laws, they will not be repeated here. Lumbar Spine Disability The Veteran contends that his service-connected lumbar spine disability is more severe than what is reflected by a 20 percent rating. His lumbar spine disability is rated 20 percent disabling under Diagnostic Code 5237. In order to warrant a 40 percent, rating under Diagnostic Code 5237, the Veteran would have to demonstrate forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, Place V, General Rating Formula for Diseases and Injuries of the Spine. In January 2011, the Veteran was afforded a VA examination to evaluate the severity of his lumbar spine disability. Physical examination revealed flexion to 60 degrees, extension to 25 degrees, left and right lateral flexion to 10 degrees, and left and right lateral rotation to 20 degrees. After repetitive use testing, the Veteran's range of motion was limited to flexion to 50 degrees, extension to 15 degrees, left and right lateral flexion to 10 degrees, and left and right lateral rotation to 10 degrees. There was no evidence of muscle spasm, guarding, tenderness, weakness, muscle atrophy, or ankylosis. The Veteran did not report experiencing flare-ups. VA treatment records reflect the Veteran continuously complained of and sought treatment for his lumbar spine disability. However, none of those records contain the results of range of motion testing. During his October 2016 Board hearing, the Veteran testified that he had to use his arms in order to stand up from a seated position and occasionally experienced feelings of instability. He also testified that he struggled to get in and out of his truck and could not turn his torso to see around sharp angles. The Veteran was afforded a second VA examination to assess the severity of his lumbar spine condition in August 2017. He complained of stiffness and constant pain that occasionally radiated into his left leg. The Veteran refused to participate in range of motion testing in any direction, citing severe back pain. However, the examiner found no objective evidence of pain on exam or with weight bearing. The Veteran did not report experiencing flare ups. Physical examination revealed no tenderness on palpation, no guarding, no muscle spasm, and no ankylosis. The Veteran's report that he could not participate in range of motion testing secondary to pain is contradicted by his VA treatment records. Treatment records frequently note that he is able to function effectively on his current treatment plan. See VA treatment records dated March 2017 and June 2017. Furthermore, a treatment record from January 2017 noted the Veteran was "[a]ctive, travels a lot; and used to walk 2 [sic] miles daily." Finally, several treatment records note the Veteran walks frequently. See VA treatment records dated February 2016, August 2016, and August 2015. The Board does not find the results of the August 2017 VA examination to be an accurate representation of the severity of the Veteran's disability. The examiner found no objective evidence of pain with weight bearing or on physical examination and VA treatment records note the Veteran's lumbar spine condition is effectively managed by his treatment plan and he remained active. The Board does not wish to discount the Veteran's pain, which is well documented in the evidence of record. However, the fact that the Veteran could remain active and functional, as documented by the August 2017 VA examination and his VA treatment records, and could move, yet chose not to do so during the course of the examination, weighs heavily against the notion that the Veteran is rendered immobile by his lumbar spine pain. As such, the only competent, credible evidence of the Veteran's limitation of range of motion is the January 2011 examination reflecting flexion limited to 50 degrees following repetitive use testing. Neither the January 2011 nor August 2017 VA examinations documented evidence of ankylosis. At no point during the period on appeal has the Veteran's lumbar spine disability manifested as forward flexion of the lumbar spine 30 degrees or less, or favorable ankylosis of the entire lumbar spine to warrant a higher, 40 percent, rating. Regarding the possibility of a higher rating due to intervertebral disc syndrome rated under Diagnostic Code 5243, the Veteran's record does not indicate he was ever prescribed bed rest by a physician. Although the August 2017 VA examination noted the Veteran had intervertebral disc syndrome, the record contains no evidence that the Veteran experienced incapacitating episodes. In considering these rating criteria, the Board has considered functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). However, an increased evaluation for the Veteran's service-connected lumbar spine disability is not warranted on the basis of functional loss due to pain for the period on appeal. The Veteran consistently reported that he did not experience flare ups, and both the January 2011 and August 2017 VA examinations found no evidence of weakness, fatigability, or incoordination. The Veteran's lay statements and testimony have been considered in this decision. However, it is the objective findings of his disability upon which ratings are based. Thus, entitlement to an increased rating greater than 20 percent for a lumbar spine disability is not warranted. As the preponderance of the evidence is against assignment of any higher rating, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. Neurological Disability During the October 2016 Board hearing, the possibility of separate compensable evaluations for bilateral lower extremity neurological abnormalities was raised. The January 2011 VA examination reflects the Veteran's second and third toes bilaterally had decreased sensation to pinprick in a "stocking" distribution. His lower extremities had normal sensation to vibration, position sense, and light touch with no dysesthesias bilaterally. He also had a positive posterior tibial nerve test bilaterally. VA treatment records dated October 2011 noted the Veteran complained of bilateral numbness in his great toes. However, physical examination was normal, and the physician ordered tests to check the Veteran's B12 and folic acid levels and advised him to discontinue alcohol consumption. A September 2012 VA treatment record notes the Veteran denied any numbness or weakness in the lower extremities. In August 2015, the Veteran reported shooting pain in his feet bilaterally. Physical examination reflected he could not feel a pinprick to his right great toe and deep tendon reflexes were absent in both ankles. The physician diagnosed him with peripheral neuropathy and advised the Veteran to stop drinking alcohol as it could be neurotoxic. The August 2017 VA examiner found no evidence of radiculopathy and all neurological testing was normal. Thus, there is no evidence that the Veteran's neurological disability is related to his service-connected lumbar spine disability. The Veteran's treating physicians have noted that the numbness he experiences in his feet is possibly related to alcohol consumption or abnormal B12 or folic acid levels. There is no medical evidence linking his lumbar spine disability to his neurological abnormalities. The Board notes that the Veteran's representative has argued that the fact that the Veteran needs to use his arms in order to rise from a seated position is evidence of a neurological abnormality related to his lumbar spine disability. As an initial point, the Veteran and his representative, as lay persons, lack the medical training and expertise to provide a complex medical opinion such as diagnosing a neurologic disability. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, their opinions are insufficient to diagnose a neurological disability. However, the Veteran is considered competent to report what comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Accordingly, he may report symptoms such as tingling, numbness, and pain; as he is uniquely qualified to report how and what he feels. However, the Board finds that the weight of the evidence is against the conclusion that the Veteran has a neurological abnormality secondary to his service-connected lumbar spine disability. His diagnosed peripheral neuropathy has consistently been treated as secondary to alcohol consumption or abnormal B12 or folic acid levels, and no physician has opined that his lumbar spine disability causes any numbness, tingling, or pain in his lower extremities. As such, there is no basis to warrant a separate, compensable rating for a neurological disability related to the Veteran's service-connected lumbar spine disability. ORDER Entitlement to an initial rating greater than 20 percent for a service-connected lumbar spine disability is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs