Citation Nr: 18139979 Decision Date: 10/02/18 Archive Date: 10/01/18 DOCKET NO. 14-09 589 DATE: October 2, 2018 ORDER Entitlement to an increased rating of 10 percent, but no higher, is granted for chronic low back pain with radicular symptoms of the right leg, subject to controlling regulations governing the payment on monetary awards. FINDING OF FACT The Veteran’s service-connected chronic low back pain more nearly approximates painful motion, but does not more nearly approximate compensable motion loss. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a 10 percent rating, but no higher, for chronic low back pain with radicular symptoms of the right leg have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1989 to February 1995. The Board most recently remanded the issue on appeal in June 2018. I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. The Veteran was appropriately notified about the information and evidence needed to substantiate the claim in a March 2011 letter. The Veteran does not assert prejudice from any notification deficiency and none has been identified by the Board. The duty to notify is satisfied. In addition, VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim and affording him an appropriate VA examination. Although the Veteran has identified private medical records, April 2016 an August 2018 letters requested that he submit a current authorization for the release of these records. He has not done so and further efforts to obtain these private medical records is not warranted. 38 C.F.R. § 3.159(c)(1). The Veteran was most recently examined in August 2018 for his back disability. To the extent any portion of the VA examination is not totally complaint with the most recent holding regarding the adequacy of VA orthopedic examinations, the instant decision results in a partially favorable determination and the Veteran is not prejudiced any VA examination inadequacy. Cf. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). The August 2018 examiner noted flare-ups with the functional impairment of pain. However, he did not believe the pain would result in lumbar spine motion loss. Passive motion studies were not conducted. Passive movement (i.e. assisted motion) would inherently reflect greater mobility than active movement. The Veteran does not identify any specific problem with passive motion or assert a comparison study is needed. Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). The Board thus finds that August 2018 VA back examination substantially complies with the June 2018 Board remand and is adequate for adjudication purposes. Id.; Stegall v. West, 11 Vet. App. 268 (1998). Consequently, the Board finds that another remand for examination would not benefit the Veteran. See Lamb v. Principi, 22 Vet. App. 227, 234 (2008) (remand not required when it would serve no useful purpose); Winters v. West, 12 Vet. App. 203, 208 (1999) (en banc) ("[A] remand is not required in those situations where doing so would result in the imposition of unnecessary burdens on the [Board] without the possibility of any benefits flowing to the appellant."); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (noting that "[a] veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution"). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of this claim. Entitlement to a compensable rating for chronic low back pain with radicular symptoms of the right leg. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating 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. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran's lumbosacral spine disability is currently rated under 38 C.F.R. §§ 4.71a, DC 5295 (lumbosacral strain) (2002). The pertinent criteria for rating spine disabilities were amended, effective September 26, 2003. DC 5295 is the diagnostic code pertaining to a lumbosacral strain that was in effect prior to September 26, 2003, at which time the rating criteria were amended such that a lumbosacral strain is now rated under 38 C.F.R. § 4.71a, DC 5237. The selection of a particular diagnostic code "is a determination that is completely dependent upon the facts of a particular case," and the Board has discretion in determining the appropriate diagnostic code. Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (applying the more deferential "arbitrary, capricious" standard, rather than de novo review, to the Board's determination of the appropriate diagnostic code). Moreover, the Board has an independent obligation to consider all "potentially applicable" provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). The Board finds the disability is now most appropriately rated pursuant to DC 5237 for lumbosacral or cervical strain. 38 C.F.R. § 4.71a, DC 5237. DC 5237 permits rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined. Id. As a preliminary matter, the record does not raise the issue of incapacitating episodes due to IVDS. Further discussion of this alternative rating criteria is not warranted. 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, 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 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 is not greater than 120 degrees; 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 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less or with 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. Note (1) provides: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2) provides that, 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 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. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Indeed, a compensable rating is warranted for joint pain pursuant to 38 C.F.R. § 4.59 for orthopedic disabilities rated under diagnostic codes containing a compensable rating, and the criteria for such a rating can be satisfied with lay and other non-medical evidence. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016); Petitti v. McDonald, 27 Vet. App. 415, 428-29 (2015). 38 C.F.R. § 4.59 also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). In his March 2011 increased rating claim, the Veteran requested an increased rating for his back disability. In September 2012, the Veteran was afforded a VA examination. The examiner diagnosed chronic low back pain with radicular symptoms of the right leg and degenerative disc disease (DDD) at L5/S1. The Veteran reported back pain from a military injury. He initially worked in manual labor, but switched to bartending because of chronic back pain. Now he had flare-ups of back pain. He reported the flare-ups occurred with prolonged standing, awkward bending or lying in to bed too long. It was described as 5/10 aching pain radiating through his right lower extremity. He could work through the pain without medication. Range of motion (ROM) for the lumbar spine was normal and without pain in all planes. Repetitive motion did not result in motion loss or functional impairment. Muscle spasm or guarding of the lumbar spine was not indicated. Muscle strength, reflexes, and sensory testing was normal. Straight leg raise (SLR) testing was normal bilaterally. The examiner determined that radiculopathy or other neurological abnormality was not observed. He noted X-rays showed degenerative changes. For functional impairment, he assessed no limitations. However, he noted the Veteran’s reports of back pain from prolonged standing as a bartender. He confirmed a diagnosis of DDD L5/S1 with chronic lower back pain without any sign of radiculopathy on examination despite the Veteran’s description of radiating pain. In June 2016, the Veteran was afforded another VA examination. The examiner diagnosed lumbosacral strain. He denied any current symptoms. He described having intermittent low back pain that did not bother him. He denied radiculopathy. He did not have any history for medication or surgery. He denied flare-ups or functional impairment. ROM study of the lumbar spine was normal and without pain. Repetitive ROM study of the lumbar spine did not show any motion loss. Muscle spasm or guarding was not found. Muscle strength, reflexes, and sensory testing was normal. SLR testing was normal bilaterally. The examiner reported that the back condition would not affect the Veteran’s ability to work. In an August 2016 VA examination for his hip disability, the Veteran reported having back pain in service that subsided. In August 2018, the Veteran was afforded a VA lumbar spine examination. He reported back pain from carrying heavy objects at work. He denied any functional impairment. ROM of the lumbar spine was complete and without pain. Repetitive motion did not result in motion loss or functional impairment. However, the examiner noted lumbar spine pain with flare-ups. However, loss of motion was not anticipated during flare-ups. Muscle spasm or guarding of the lumbar spine was not indicated. Muscle strength, reflexes, and sensory testing was normal. Straight leg raise (SLR) testing was normal bilaterally. No other radiculopathy symptoms were indicated. The examiner reported that the disability had resolved since there were no objective findings to support a back condition diagnosis or radiculopathy. Upon review, the Board finds that the service-connected chronic low back pain with radicular symptoms of the right leg more nearly approximates painful motion to warrant a 10 percent rating. Burton, supra; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5237. The VA examination reports do not show compensable motion loss for the lumbar spine. However, the Veteran reported having back pain associated with flare-ups or prolonged use at the September 2012 and August 2018 VA examinations. The Veteran is competent to report back pain associated with flare-ups and the Board finds his reports credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted). As joint pain warrants the minimum compensable rating, a 10 percent rating for service-connected low back pain is granted. Burton, supra.; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5237. A rating in excess of 10 percent or additional ratings for associated neurological impairments is not warranted. The lumbar spine ROM studies indicate the Veteran has normal movement in all lumbar spine planes of motion. Guarding or muscle spasm is not indicated. Neurological testing is negative. Moreover, there is no indication in the above evidence that the reduction in motion from flare-ups would result in limitation of motion more nearly approximating the criteria for the next higher rating. Specifically, the August 2018 examiner noted flare-ups with the functional impairment of pain but indicated that he did not believe the pain would result in lumbar spine motion loss. This complies with Sharp and reflects that a higher rating is not warranted based on flare-ups. For the above stated reasons, the Board finds that the Veteran's service-connected chronic low back pain with radicular symptoms of the right leg warrants an increased 10 percent rating, but no higher. As the preponderance of the evidence is against a rating in excess of 10 percent or separate ratings, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board has considered entitlement to a total disability rating based upon individual unemployability (TDIU) as part of the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Veteran has not specifically requested a TDIU as part of the instant increased rating claim. Further consideration of TDIU is not warranted at this time. Neither the Veteran, nor his representative has raised any other issues with the above ratings, nor have any other issues 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). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. D. Simpson, Counsel