Citation Nr: 18143259 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 07-03 534 DATE: October 18, 2018 ORDER An increased disability rating in excess of 20 percent prior to April 13, 2010 for paravertebral fibromyositis and discogenic disease with herniated nucleus pulposus at the L4-L5 and L5-S1 of the lumbar spine (lumbar spine disability) is denied. An increased disability rating in excess of 40 percent from April 13, 2010 for the lumbar spine disability is denied. FINDINGS OF FACT 1. Prior to April 13, 2010, the Veteran’s lumbar spine disability was manifested, in pertinent part, by pain, reduced muscle strength and forward flexion of 45 degrees. 2. From April 13, 2010, the Veteran’s lumbar spine disability was manifested, in pertinent part, by pain, reduced muscle strength and forward flexion, at worst, of 10 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased disability rating in excess of 20 percent prior to April 13, 2010 for the lumbar spine disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.27, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5243 (2017). 2. The criteria for entitlement to an increased disability rating in excess of 40 percent from April 13, 2010 for the lumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.27, 4.40, 4.45, 4.71a, DC 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1964 to August 1991, which included service during the Vietnam Era. He also had service in the Puerto Rico Air National Guard. Increased Rating 1. The issues of entitlement to an increased disability rating in excess of 20 percent prior to April 13, 2010 for the lumbar spine disability; and an increased disability rating in excess of 40 percent from April 13, 2010 for the lumbar spine disability. The Veteran contends that he is entitled to an increased disability rating in excess of 20 percent prior to April 13, 2010 and in excess of 40 percent from April 13, 2010 for the lumbar spine disability. See December 2006 Letter from the Veteran. Preliminarily, the Board notes the applicable DC is 5243 for intervertebral disc syndrome (IVDS). 38 C.F.R. § 4.71a. As such, the Veteran’s lumbar spine disability may be rated under the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes, which ever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). Under the Formula for Rating IVDS Based on Incapacitating Episodes, at a minimum, incapacitating episodes having a total duration of at least one week, but less than two weeks during the past 12 months is necessary for a compensable disability rating. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes, Note (1) (for purposes of evaluation, 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). In this regard, the Veteran submitted treatment records from Dr. F.V.L. from August 2009 to April 2012, which are in Spanish. He took it upon himself to highlight and translate the portions of the treatment records which indicated Dr. F.V.L. prescribed bed rest. See August 2017 Letter from the Veteran. According to him, in all, Dr. F.V.L. prescribed bed rest three times in 2009, once in August, September and October; once in February 2010; and once in April 2012. Treatment Notes from Dr. F.V.L. However, there is no information regarding the length of the bed rest prescribed. Previously, some of these treatment notes were sent out for translation by the VA. However, the translator was largely unable to transcribe Dr. F.V.L.’s handwritten notes because they were illegible and the portions transcribed neither confirm nor disprove the Veteran’s translation. January 2017 S.T.I. Translated Documents. There is no other medical evidence of record showing bed rest prescribed at any other time. Even accepting the Veteran’s translations, the General Rating Formula for Diseases and Injuries of the Spine is more advantageous to him because at no time during a 12 month period did he have incapacitating episodes having a total duration of at least one week. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent disability rating is warranted if there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; forward flexion of the cervical spine greater than 13 degrees, but not greater than 30 degrees; combined range of motion (ROM) of the thoracolumbar spine not greater than 120 degrees; combined ROM of the cervical spine not greater than 170 degrees; 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 disability rating is warranted if there is unfavorable ankylosis of the entire cervical spine; forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine, without or without symptoms such as pain, stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. Further, when evaluating musculoskeletal disabilities such as spinal disabilities, 38 C.F.R. § 4.40 recognizes the primary concern is the inability to perform the normal working movements of the body with normal excursion, strength, speed coordination, or endurance. Thus, when evaluating musculoskeletal disabilities on the basis of limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors that may not be reflected upon ROM testing during flare-ups or with repeated use over time. In that regard, the VA must also consider factors such as: more or less movement than normal; weakened movement; excess fatigability; incoordination; and pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Instability of station, disturbance of locomotion, and interference with sitting, standing and weight-bearing are related considerations as well. 38 C.F.R. § 4.45. Nevertheless, even when such factors are present, a separate or higher disability rating is not appropriate based on those factors alone. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Rather, the disability rating assigned is based on the extent to which motion is limited as a result of these factors. Generally, in assessing the evidence of record, the Board acknowledges the Veteran is competent to provide evidence regarding the lay observable symptoms of his lumbar spine disability. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007), abrogated on other grounds by Walker v. Shinseki, 708 F.3d 1331 (2013). However, he is not competent to render a medical diagnosis or opinion on complex medical questions such as ROM measurements, presence of ankylosis or other complications stemming from his lumbar spine disability. See Barr, supra; Jones v. West, 12 Vet. App. 460, 465 (1999). Therefore, in this regard, the Board must rely on the medical evidence of record. As in this instance, where an increase in the rating assigned is at issue, the primary concern is the Veteran’s present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994); cf. Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, if factually ascertainable, the effective date assigned may be up to one year prior to the date the application for increase was received. 38 U.S.C. § 5110 (2012). Thus, here, the relevant timeframe for consideration is from September 19, 2004 to the present. See September 2005 Statement in Support of Claim (the Veteran initiated an increased rating claim for the lumbar spine disability, which was received by the Regional Office (RO) on September 19, 2005). As indicated above, the claims file contains private treatment records which are in Spanish. An attempt to translate these records have been undertaken at least twice. January 2017 S.T.I. Certification; September 2018 P.T. Certification. A significant portion of the records sent out for translation were handwritten treatment notes, which neither translator was able to transcribe. A review of the handwritten treatment notes shows they are illegible. Based on the foregoing, the Board finds another attempt to translate these documents would be futile. In terms of the treatment records that were able to be translated or are in English, the first relevant record comes in June 2005. A June 2005 O.T. Treatment Note documented that the Veteran exhibited stiffness, trigger points along the paraspinal muscle and sacroiliac joint. There was also evidence of roto scoliosis. Nevertheless, he was able to achieve forward flexion of 45 degrees; extension of 10 degrees; right lateral flexion of 15 degrees; left lateral flexion of 30 degrees; right and left lateral rotation of 10 degrees. There was evidence of pain with each motion tested. Although the treatment provider indicated a rule out diagnosis of ankylosing spondylitis, subsequent imaging studies do not confirm such a diagnosis. June 2005 O.T. Treatment Note; cf. March 2006 VA Imaging Study. There are no other relevant treatment records from 2005 or 2006. The singular treatment record from 2007, reveals the Veteran demonstrated limited forward, backward and lateral motion. January 2007 C.C. Medical Summary. While Dr. F.V.L. indicated he was unable to perform normal working movements or routine functions due to the constant, severe pain he experienced, Dr. F.V.L. did not provide specific ROM measurements. Dr. F.V.L. also documented his complaint of pain radiating down into his lower extremities. Dr. F.V.L. indicated he was being treated with both prescription and over the counter pain medications. In the end, Dr. F.V.L. recommended he undergo therapy for his back and lifestyle changes, to include no walking, strenuous movements, stair climbing or exercising. In doing so, Dr. F.V.L. also noted he suffered from various other physical disabilities, to include erectile dysfunction, gout, right shoulder bursitis, left Achilles tendonitis, chronic constipation, renal stones and high cholesterol. As such, it is unclear whether the physical restrictions were solely due to the lumbar spine disability. There are no relevant treatment records from 2008. A September 2009 Buddy Statement from R.L.C., the Veteran’s friend, relayed that he has observed the Veteran struggle with his physical ailments. R.L.C. stated the Veteran constantly complained of pain in his low back, hips as well as his legs. He was unable to sit, lay down or stand for prolonged periods because the pain became unbearable. He was unable to lift anything heavy, climb stairs or do almost anything without the assistance of another person. R.L.C. indicated he has helped the Veteran on many occasions. Further, R.L.C. observed the Veteran’s medications did not appear to provide significant relief and months passed before any improvement can be noticed. Although R.L.C. is competent to provide evidence regarding his personal observations of the Veteran’s physical ailments, there is no evidence of record demonstrating that R.L.C. has the requisite medical knowledge, training or experience to distinguish between the limitation of motion or function attributable to his various physical disabilities. See Barr, supra; Jones v. supra. Moreover, R.L.C. does not attribute his functional limitations to strictly to his lumbar spine disability. Thus, the probative value of R.L.C.’s September 2009 Buddy Statement is limited to confirmation the Veteran continued to experience low back pain. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The pertinent treatment records from 2009 begin in September. A September 2009 Treatment Note from Dr. M.F.C. noted the Veteran had a long history of back problems. He was unable to stay in bed, sit or stand for prolonged periods of time due to pain. He was unable to move around freely without assistance. He could not complete basic personal tasks such as bathing, shaving and dressing. Pain medications did not offer much relief. Unfortunately, Dr. M.F.C.’s notes did not include ROM measurements. Thereafter, the Veteran’s VA treatment records between September and December 2009 generally record his continued complaint of back pain. In September, he rated his pain at nine out of 10, but by December his pain appears to have improved because he rated it at six out of 10 despite not taking pain medications. September 2009 VA Primary Care Note; December 2009 VA Primary Care Note. He regularly reported pain was worse with prolonged sitting and bending forward, but improved with straightening. While October and December 2009 VA Primary Care Notes indicated he exhibited decreased ROM with flexion, extension and lateral flexion, specific ROM measurements were not provided. Of note, in an October 2009 VA Primary Care Note, the VA treatment provider determined he had less difficulty walking despite his chronic back pain. In a December 2009 VA Primary Care Note, the VA treatment provider noted that although he remained symptomatic, his back pain was improved. In an October 2009 C.C. Medical Summary, Dr. F.V.L. documented the Veteran experienced debilitating back pain, numbness, muscle weakness, tingling and pain radiating into his lower extremities in the form of electric jolts along the sciatic nerve. The pain associated with the sciatic nerve was disabling, lasting more than six weeks at a time and occurring between three to four times per year. However, Dr. F.V.L. provided no information bearing on the limitation of motion or function stemming from his debilitating symptoms. Dr. F.V.L. indicated his treatment consisted of prescription pain medications, pain clinic therapy and limited non-impact exercises. It appears the Veteran underwent physical therapy for his lumbar spine disability in January and February 2010. January 21, 2010 to February 23, 2010 Rehabilitation Treatment Notes. Although some of the Rehabilitation Treatment Notes contain handwritten notes in Spanish which were unable to be translated, some portions are in English. The portions of the Rehabilitation Treatment Notes in English show various treatment methods were utilized, but provide no information related to the applicable diagnostic criteria. The lone VA treatment record from May 2010 recorded the Veteran’s report that while physical therapy helped for a little bit, he continued to experience pain, which he rated at nine out of 10. May 2010 VA Primary Care Note. The VA treatment provider determined there was decreased ROM of his back, but did not provide specific ROM measurements. In furtherance of this claim, the Veteran has been examined by the VA on three occasions; first in November 2006, then in April 2010 and August 2017. November 2006 Spine VA Examination Report; April 2010 Spine VA Examination Report; August 2017 Back Conditions VA Examination Report. The Board notes the November 2006 and April 2010 VA examinations were conducted prior to the decision in Correia v. McDonald. Correia v. McDonald, 28 Vet. App. 158 (2016). As such, the Board must review the November 2006 and April 2010 Spine VA Examination Reports for compliance with the Correia mandates. Upon review, the Board finds the November 2006 and April 2010 Spine VA Examination Reports are not fully compliant with Correia. Specifically, the November 2006 VA examiner did not proffer an opinion bearing on the limitation of motion or function during flare-ups or with repeated use over time. Cf. Correia, 28 Vet. App. at 170; cf. also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); DeLuca, supra. The April 2010 VA examiner did not include any findings addressing ROM with passive motion or in weight-bearing or non-weight bearing. Cf. Correia, 28 Vet. App. at 170. Thus, the November 2006 and April 2010 Spine VA Examination Reports are inadequate for evaluation purposes. Nevertheless, during the pendency of this appeal, the Board notes the RO granted a higher 40 percent disability rating effective April 13, 2010 based on the April 2010 VA examiner’s findings. May 2010 Supplemental Statement of the Case; May 2010 Rating Decision. Therefore, the April 2010 VA examiner’s findings must be acknowledged. During the April 2010 examination, the Veteran reported suffering from daily back pain, which he rated at 10 out of 10 on the pain scale, with 10 being the most severe. April 2010 Spine VA Examination Report. He described the pain as severe, stabbing and lasting for hours at a time. The pain radiated into both legs. Additionally, he experienced decreased motion and muscle spasms. He was unable to walk more than a few yards and had to rely on using a cane and wheelchair. He relayed that his response to treatment has been poor. However, he denied experiencing any flare-up episodes. Upon ROM testing, the Veteran demonstrated forward flexion of 10 degrees; extension of five degrees; right and left lateral flexion of 10 degrees; and right and left lateral rotation of 10 degrees. There was objective evidence of pain with motion. He was unable to complete repetitive use testing because he had poor standing tolerance due to pain in the lower back. However, the VA examiner noted there was objective evidence of pain with repetitive motion. Aside from ROM, the VA examiner observed the Veteran’s had an antalgic, shuffling gait and poor standing tolerance. There was also evidence of lumbar flattening. Despite his claim that he experienced muscle spasms, the VA examiner found no evidence of the same. However, there was evidence of guarding and tenderness, which were severe enough to result in an abnormal gait or spinal contour. His muscle strength was reduced in all respects, scoring 4/5, indicating active movement against some resistance, but no evidence of muscle atrophy. Id. (noting muscle strength is scored from zero, indicating total paralysis, to five, active movement against full resistance). Following the April 2010 VA examination, the available treatment records are scarce. A May 2011 VA Primary Care Note documented the Veteran’s complaint that his low back pain was starting again, suggesting some improvement prior to that time. The VA treatment provider observed that he arrived for the appointment in a wheelchair. Upon examination, the VA treatment provider noted there was evidence of low back tenderness. However, no further information is provided related to the relevant diagnostic criteria. Other than the treatment records referenced above, there are no other relevant treatment records from 2012. A singular VA Primary Care Note from May 2013 indicates the Veteran’s chronic low back pain had improved since losing weight, without any further information. The only treatment record from 2014 discloses the Veteran’s chronic low back pain was responding well to pain medications. September 2014 VA Primary Care Note. Of note, the VA treatment provider observed that he arrived for the appointment using a walker, which he began using in May due to his left Achilles tendonitis. No additional information is provided bearing on the relevant diagnostic criteria. The next pertinent treatment record comes in August 2015. An August 2015 VA Primary Care Note recorded the Veteran’s report of continued back pain, which radiated into his legs. He rated the pain at a six out of 10. No further information is provided related to the relevant diagnostic criteria. There are no relevant treatment records from 2016. Thereafter, a June 2017 VA Primary Care Follow Up Note shows the Veteran complained of a recent exacerbation of his back pain over the past three to four months. Generally, the VA treatment provider noted he demonstrated decreased ROM, but did not provide specific ROM measurements. Further, the VA treatment provider found there was contracture of the paravertebral muscles. The Veteran was examined again by the VA in August 2017. August 2017 Back Conditions VA Examination Report. During the examination, he averred that he continued to suffer from severe low back pain, which radiated into both lower extremities. He had difficulty walking for a prolonged period. He reported experiencing flare-up episodes, which consisted of severe low back pain. He did not describe any limitation of motion or function associated with increased pain during flare-ups. ROM testing showed the Veteran could achieve forward flexion of 40 degrees (normal being to 90 degrees); extension of 10 degrees (normal being to 30 degrees); right and lateral flexion of 10 degrees (normal being to 30 degrees bilaterally); right and left lateral rotation of 10 degrees (normal being to 30 degrees bilaterally). There was evidence of pain with all motions tested, include with passive ROM as well as with weight-bearing and in non-weight bearing. This time, he was able to perform repetitive use testing. Following repetitive use testing, there was no additional limitation of motion or function. Other than ROM, the VA examiner observed the Veteran occasionally relied on the use of a wheelchair and walker. The VA examiner found evidence of tenderness of the paravertebral muscles and muscle spasms. However, the muscle spasms were not severe enough to result in an abnormal gait or spinal contour. His muscle strength was normal in all respects, with the exception of great toe extension bilaterally, which was scored at 4/5. There was no evidence of muscle atrophy. His reflexes were reduced in all respects, scoring 1+, indicating it was hypoactive. Id. (noting reflexes were scored from 0, indicating hypoactivity, to 2+, indicating normal, and to 4+, indicating hyperactivity with colnus). There was decreased sensation to light touch at the bilateral lower leg/ankle and foot/toes as well as evidence of mild radiculopathy of the right lower extremity involving the sciatic nerve and moderate radiculopathy of the left lower extremity involving the sciatic nerve. There was no evidence of ankylosis. No other pertinent physical findings, complications, conditions, signs or symptoms were noted. In the end, the VA examiner concluded the examination was medically consistent with the Veteran’s statements describing functional loss during flare-up episodes or with repetitive use over time. While pain significantly limited functional ability during a flare-up or with repetitive use over time, it could not be expressed in terms of additional degrees of limitation in ROM because to do so would be speculative given that he was not examined during a flare-up or following repetitive use over time. Given the examination revealed no additional limitation of motion with repetitive use testing, there are no other medical records addressing the Veteran’s limitation of motion or function during a flare-up or with repetitive use over time and he only relayed increased pain during flare-ups or with repeated use over time without describing any additional limitation of motion or function at the time of examination, the Board finds the August 2017 Back Conditions VA Examination Report is adequate for evaluation purposes because there was no other reasonably procurable data available for the VA examiner to weigh. See Jones v. Shinseki, 23 Vet. App. 382, 291 (2010); cf. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In contemplating the above, the Board finds the preponderance of the evidence does not support an increased disability in excess of 20 percent for the lumbar spine disability prior to April 13, 2010. Cf. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.71a, DC 5243 (2017); cf. also Fagan v. Shinseki, 573 F.3d 1282, 1287 (2009). While the Veteran’s treatment records prior to April 13, 2010, indicate that he was unable to perform normal working movements or routine functions due to his constant, severe pain throughout the relevant timeframe, the only ROM measurement available reveals his forward flexion was 45 degrees, which is15 degrees more than the minimum limitation of forward flexion required to support the next higher 40 percent disability. Further, there is no evidence of confirming the presence of ankylosis of the thoracolumbar spine. From April 13, 2010, the Board finds the preponderance of the evidence does not support an increased disability in excess of 40 percent for the lumbar spine disability. Cf. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.71a, DC 5243; cf. also Fagan, supra. Although the Veteran’s lumbar spine disability remained symptomatic, there are only two ROM measurements during the relevant period. At the time of the April 2010 VA examination, he was able only to demonstrate 10 degrees of forward flexion, which is within the ROM prescribed for the assigned 40 percent disability rating. By the time of the August 2017 VA examination, his forward flexion was improved to 40 degrees, which is 10 degrees greater than the maximum forward flexion of 30 degrees warranting a 40 percent disability rating. While this improvement more appropriately reflects a 20 percent disability rating from August 2017, the Board declines to reduce the disability rating assigned. There remained no evidence of ankylosis of the thoracolumbar spine. The Board’s inquiry does not end here. The Board must also consider increased evaluations under other potentially applicable DCs. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); cf. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Other DCs pertaining to the spine are DCs 5235 through 5242. Generally, as it pertains to these DCs, further consideration would violate the prohibition against pyramiding in 38 C.F.R. § 4.14 as the symptomatology for any one of the conditions is duplicative of or overlapping with the other conditions given the same General Rating Formula for Diseases and Injuries of the Spine is utilized to evaluate these DCs. 38 C.F.R. § 4.71a. There only symptoms raised by the evidence of record not encompassed by the General Rating Formula for Diseases and Injuries of the Spine is radiculopathy of the right and left lower extremities. Service connection for radiculopathy of the   right and left upper extremities was granted in a November 2006 rating decision. Therefore, further consideration is unnecessary. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Suh, Associate Counsel