Citation Nr: 1806209	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  10-45 763	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to increases in the "staged" (10 percent prior to April 18, 2017, and 20 percent from that date) ratings assigned for lumbar spine spondylolisthesis with degenerative arthritis (low back disability).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

William Skowronski, Associate Counsel
INTRODUCTION

The appellant is a Veteran who served on active duty from April 1978 to March 1989.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO).  In October 2016, a hearing was held before the undersigned in Washington, D.C.; a transcript of the hearing is associated with the record.  In February 2017, the Board remanded the claim for additional development.  An interim (August 2017) rating decision granted a "staged" increased (to 20 percent) rating for the low back disability, effective April 18, 2017.  [The February 2017 Board decision also remanded the matters of service connection for a bilateral hip disability and for loss of bowel control.  The August 2017 rating decision also granted service connection for bowel incontinence and left and right hip disabilities, and those matters are no longer before the Board.]

The matter of entitlement to increases in the "staged" (10 percent prior to now December 19, 2016, and 20 percent from that date) ratings assigned for the low back disability is being REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if action on his part is required.


FINDING OF FACT

Throughout from December 19, 2016, the Veteran's low back disability is shown to have been manifested by a limitation of flexion to at least 50 degrees.


CONCLUSION OF LAW

A 20 percent (at least) rating is warranted for the Veteran's low back disability from the earlier effective date of December 19, 2016.  38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. § 4.3, 4.7, 4.21, 4.71a, Diagnostic Code (Code) 5242 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  VA's duty to notify was satisfied by correspondence in February 2009.  

Regarding VA's duty to assist, as will be explained below, the Board finds that the record as it stands includes adequate competent evidence to allow the Board to grant at least a 20 percent rating for the low back disability from December 19, 2016 without prejudice to the Veteran, and that no further development of the evidentiary record is necessary. 

Neither the Veteran nor her representative has raised any other issues with VA's duties to notify and 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 duty to assist argument).

Legal Criteria, Factual Background, and Analysis

Disability evaluations are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule), which is based upon the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries and their residual conditions in civil occupations.  38 C.F.R. § 4.1.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, separate ratings may be assigned for separate periods of time based on the facts found.  This practice is known as "staged" ratings."  Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Id.  

The Veteran's low back disability has been assigned "staged" ratings of 10 percent prior to April 18, 2017 and 20 percent from that date under Code 5242 for degenerative arthritis of the spine.  

Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply:  A 10 percent rating is warranted 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 greater than 235 degrees; 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 warranted 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 warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, Code 5242.

Where there is a question as to which of two evaluations shall be applied, the higher rating 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 there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims.

In January 2017, the Veteran submitted a disability benefits questionnaire (DBQ) completed by a private physician on December 19, 2016.  The Veteran reported flare-ups made it difficult to stand, do yardwork, climb stairs, and move his back.  On-range-of-motion testing, flexion was 0 to 50 degrees, extension was 0 to 15 degrees, right lateral flexion was 0 to 30 degrees, left lateral flexion was 0 to 30 degrees, right lateral rotation was 0 to 30 degrees, and left lateral rotation was 0 to 30 degrees.  The examiner noted the pain contributed to functional loss or additional limitation of motion.  Repetitive testing was not performed.  However, the examiner opined forward flexion was limited to 40 degrees, extension was limited to 15 degrees, and right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation were limited to 0 degrees during flare-ups.  

On April 2017 VA spine examination, the Veteran reported back pain and stiffness.  The pain affected his balance from time to time, causing him to stumble.  Lifting objects and using stairs caused additional pain.  He did not report flare-ups of pain.   On-range-of-motion testing, flexion was 0 to 50 degrees, extension was 0 to 15 degrees, right lateral flexion was 0 to 10 degrees, left lateral flexion was 0 to 15 degrees, right lateral rotation was 0 to 25 degrees, and left lateral rotation was 0 to 25 degrees.  The examiner noted the abnormal range of motion contributed to functional loss.  

On longitudinal view of the record the Board finds it shown that the Veteran's low back disability was manifested by limitation of flexion to at least 50 degrees from as early as December 19, 2016.  The limitation of flexion to 50 degrees found on private December 2016 evaluation was corroborated by the April 2017 VA examination.  Based on the foregoing, the Board concludes that the orthopedic manifestations of the low back disability are shown to have met the criteria for at least a 20 percent rating from the earlier effective date of December 19, 2016.

The undersigned acknowledges that, generally, piecemeal adjudication is not encouraged.  However, given that the Veteran's claim for increase has been pending for a number of years, and further delay in implementing a grant to at least the next higher (20 percent) rating from December 19, 2016 when evidence clearly shows such is warranted would be a disservice to the Veteran.  Obviously, he is not prejudiced by the partial grant; and it should not impact on further development and readjudication of his claim for further increase.   


ORDER

A 20 percent rating is granted for the Veteran's low back disability from the earlier effective date of December 19, 2016, subject to the regulations governing payment of monetary awards, and also to the further action ordered in the Remand below. 


REMAND

The Board finds that further development of the record is again needed for a proper adjudication of the matter of entitlement to increases in the "staged" (10 percent prior to now December 19, 2016, and 20 percent from that date) ratings assigned for the low back disability.
It appears that pertinent records of treatment the Veteran has received for his low back disability remain outstanding.  The April 2017 VA examiner opined the back disability impacted on the Veteran's ability to work, explaining that his medical records confirm that he lost more than five weeks of work due to the back disability in the 12 months prior to the examination.  It is not clear which medical records are cited, but a careful review of private treatment records submitted by the Veteran in March 2017 found that they do not show or suggest he had lost over five weeks of work due to the back disability in the year prior to April 2017.  It appears that the provider viewed records that have not been associated with the Veteran's record, and that perhaps some private treatment records may be outstanding.   All outstanding records of evaluations and treatment the Veteran received for his low back disability during the evaluation period are pertinent evidence and must be sought.  

The case is REMANDED for the following:

1. The AOJ should advise the Veteran that the complete records of his private treatment for low back disability are pertinent evidence that is outstanding, and ask him to submit authorizations for VA to secure such records.  The AOJ should secure for the record complete clinical records from all providers identified, to specifically include any records showing periods of absences from employment due to low back disability.  If any private records sought are not received pursuant to the AOJ request, the Veteran should be so advised, and advised further that ultimately it is his responsibility to ensure that private treatment records are received.  

2. The AOJ should arrange for any further development suggested by the evidence received (e.g., an updated VA examination to assess the low back disability if indicated) then review the entire record and readjudicate the matter entitlement to increases in the "staged" (10 percent prior to December 19, 2016, and 20 percent from that date) ratings assigned for the low back disability.  If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board.  

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).


______________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs