Citation Nr: 18153767 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-28 347 DATE: November 28, 2018 ORDER 1. Entitlement to an increased disability rating in excess of 10 percent for degenerative arthritis of the lumbar spine prior to December 1, 2014, is denied. 2. Entitlement to an increased disability rating in excess of 20 percent for degenerative arthritis of the lumbar spine from December 1, 2015, to July 8, 2015, is denied. 3. Entitlement to an increased disability rating in excess of 40 percent for degenerative arthritis of the lumbar spine from July 9, 2015, forward, is denied. FINDINGS OF FACT 1. For the period prior to December 1, 2014, the Veteran’s arthritis of the lumbar spine was not manifested by forward flexion limited to 60 degrees or less, or combined range of motion of the lumbar spine limited to 120 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait, or by vertebral body fracture with loss of 50 percent of more of the height; the Veteran was diagnosed with but not service-connected for thoracolumbar rotoscoliosis. 2. For the period from December 1, 2015, to July 8, 2015, the Veteran’s arthritis of the lumbar spine was not manifested by forward flexion limited to 30 degrees or less, or by favorable ankylosis of the thoracolumbar spine. 3. From July 9, 2015, forward, the Veteran’s arthritis of the lumbar spine has not been manifested by unfavorable ankylosis of the thoracolumbar spine CONCLUSIONS OF LAW 1. Prior to December 1, 2014, the criteria for a disability rating in excess of 10 percent for arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, 4.119, 20.200; Diagnostic Code 5242. 2. For the period from December 1, 2015, to July 8, 2015, the criteria for a disability rating in excess of 20 percent for arthritis of the lumbar spine have not been met, and the combined disability rating was calculated correctly. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.25, 4.40, 4.45, 4.71a, 4.119, 20.200; Diagnostic Code 5242. 3. From July 9, 2015, forward, the criteria for a disability rating in excess of 40 percent for arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, 4.119, 20.200; Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1974 to July 1998. This appeal is before the Board of Veterans’ Appeals (Board) from the Department of Veterans Affairs (VA) regional office’s (RO) December 2014 and May 2016 rating decisions. 1. Factual and Procedural Background In August 1998, the Veteran filed an application for disability compensation based on his back pain and hepatitis C, and other medical conditions. In January 1999, the RO granted service connection for: (1) mechanical low back pain, evaluated as a 10 percent disabling, effective August 1, 1998; and (2) hepatitis C, evaluated as 0 percent disabling, effective August 1, 1998. Effective June 8, 2009, the RO increased the rating for hepatitis C to 40 percent disabling; with that, the Veteran’s combined disability rating became 50 percent disabling. On September 16, 2014, a VA examiner: (1) diagnosed the Veteran with arthritis of the lumbar spine and intervertebral disc syndrome (IVDS); and (2) recorded his forward flexion to 65 degrees, extension to 20 degrees, and normal left and right lateral flexion and rotation. In September 2014, the RO issued a rating decision continuing the 10 percent evaluation of his arthritis of the lumbar spine, previously rated as a mechanical low back pain. On November 12, 2014, the Veteran filed a notice of disagreement (NOD-1) with the September 2014 rating decision; he also asserted that his lumbar spine had gotten worse. On December 1, 2014, a VA examiner: (1) determined that his lumbar spine disability increased in severity; and (2) recorded that his forward flexion reduced to 50 degrees, his extension reduced to 15 degrees, but his left and right lateral flexion and rotation remained normal. In December 2014, the RO issued a rating decision increasing the evaluation of the Veteran’s arthritis of the lumbar spine to 20 percent disabling effective the date of the December 1, 2014, VA examination. However, his combined disability rating remained at 50 percent and, in December 2014, the RO sent him a notice (Notice-2014) stating so. On December 23, 2014, the Veteran filed a notice of disagreement (NOD-2) with the December 2014 rating decision. The NOD-2 indicated that, because the Veteran’s combined disability rating remained at 50 percent, he construed the Notice-2014 as a denial of any increase in the rating of his lumbar spine disability above 10 percent disabling and challenged the adequacy of the December 1, 2014, VA examination, alleging that it was: (1) the basis for said denial; and (2) less favorable to his claim than the September 16, 2014, VA examination. On July 9, 2015, the Veteran filed a new claim (Claim-2015) asserting that his lumbar spine disability increased in severity. A December 2015 VA examiner found that his forward flexion reduced to 15 degrees, his extension reduced to 10 degrees, and his right and left lateral flexion and rotation reduced to 10 degrees each. In May 2016, the RO issued a rating decision increasing the evaluation of his lumbar spine disability to 40 percent disabling effective the date of its receipt of the Claim-2015. However, simultaneously with the May 2016 rating decision, the RO issued a statement of the case (SOC) in response to the Veteran’s NOD-1 based on his misreading of the Notice-2014. Unfortunately, the May 2016 SOC was incoherent, since: (1) its “Decision” section addressed the December 2014 rating decision; but (2) its “Reasons and Bases” section addressed the May 2016 rating decision, no aspect of which the Veteran was – or even could have been – challenging at that juncture. On June 8, 2016, two weeks after the SOC was issued, the Veteran filed a notice of disagreement (NOD-3) with the May 2016 rating decision seeking an evaluation of his lumbar spine disability as 40 percent disabling effective the date of the RO’s receipt of his NOD-1. Although the NOD-3 did not address the December 1, 2014, rating decision, the NOD-3 was construed and certified as a substantive appeal from that rating decision. 2. Preliminary Considerations A. Procedural Irregularities The Board notes that VA amended its regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). Because the amendments are effective for claims and appeals filed on or after March 24, 2015, the Veteran’s Claim-2015 and NOD-3 should have been executed on standard forms. Further, for the purposes of each rating decision, an appeal is: (1) initiated by a claimant’s filing of an NOD challenging that decision; (2) continued by an RO furnishing an SOC reflecting on that decision; and (3) completed by a substantive appeal from that decision. 38 U.S.C. § 7105(a); 38 C.F.R. § 20.202. These documents cannot mix-and-match the rating decisions they address. Here, however, the Veteran’s appeal consists of: (1) the NOD-1 challenging the December 2014 rating decision; (2) the SOC addressing the December 2014 rating decision in its “Decision” section but discussing the May 2016 rating decision in its “Reasons and Bases” section; and (3) the NOD-3 challenging the May 2016 rating decision but construed as a substantive appeal from the December 2014 rating decision. In sum, there is no proper appeal. However, the Board deems the appeal duly perfected because the Veteran was led to believe his appeal was proper because the appeal was certified. Percy v. Shinseki, 23 Vet. App. 37, 47 (2009). B. Misreading of the Notice-2014 In his NOD-1, the Veteran asserted that the Notice-2014 was a denial of any evaluation of his lumbar spine disability above 10 percent disabling. However, the Notice-2014 merely informed him that his benefit payment would remain the same after the evaluation of his lumbar spine disability increased from 10 percent to 20 percent disabling. A disability compensation payment is based on a veteran’s “combined” disability rating computed by combining, rather than simply adding, individual ratings of the veteran’s service-connected disabilities. 38 C.F.R. § 4.25. To perform such a calculation, VA considers each disability in order of severity, from the one with the highest evaluation to that with the lowest. The disability with the highest evaluation is factored in at its full percentage value (Initial Percentage). The Initial Percentage is deducted from 100 percent to determine the difference representing the veteran’s capacity unaffected by the disability having the highest evaluation (Unaffected Difference). The effect of the disability with the next highest evaluation is then calculated as a percentage of the Unaffected Difference, and that percentage is added to the Initial Percentage, and so forth. This sum of so calculated percentages is then rounded to the nearest 10 percent to obtain the combined rating, which is the basis for the benefit payment. See id. Here, the Veteran’s hepatitis C 40 percent rating, combined with the 10 percent rating awarded for his arthritis of the lumbar spine prior to December 2014, yielded a combined rating of 50 percent because: (1) 100 minus 40 is 60; (2) 10 percent of 60 is six; (3) the sum of 40 and six is 46; and (4) 46, rounded to the nearest 10, is 50. After the rating of the Veteran’s arthritis of the lumbar spine was increased to 20 percent disabling effective December 2014, his combined rating remained at 50 percent because: (1) 100 minus 40 is 60; (2) 20 percent of 60 is 12; (3) the sum of 40 and 12 is 52; and (4) 52, rounded to the nearest 10, is 50. Thus, the Veteran’s combined disability rating stated in the Notice-2014 was properly calculated. Further, to the extent the NOD-2 challenged the adequacy of the Veteran’s December 1, 2014, VA examination on the grounds that its outcome was less favorable to his claim than the outcome of his September 16, 2014, examination, the challenge is without a basis in fact or law. The findings of the December 1, 2014, VA examiner were more, not less, favorable to the Veteran’s claim than the findings of the September 16, 2014, VA examiner. Moreover, the favorability of a medical finding is not a consideration relevant to the adequacy of a medical examination. To provide an adequate examination, an examiner must take into account an accurate history of a disability and all the relevant evidence of record, including a veteran’s lay statements. See Nieves-Rodriguez v. Nicholson, 22 Vet. App. 295 (2008). Here, the December 1, 2014 VA examiner conducted a careful evaluation of the Veteran’s musculoskeletal system, considered his service treatment records and medical history post service, including his lay statements. Therefore, the Board finds that the December 1, 2014, VA examination was adequate. 2. Analysis Essentially, the Veteran’s appeal is for a higher rating for his service connected lumbar back disability, even though he framed the issue in terms of an earlier effective date as to his 40-percent-disabling evaluation. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993). A. Legal Criteria – Generally Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. All reasonable doubt is resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability is to be considered during the entire appeal period from the initial assignment of the disability rating to the present. See Fenderson v. West, 12 Vet. App. 119 (1999). Pyramiding, that is, an evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. The U.S. Court of Appeals for Veterans Claims has held that, in determining the present level of a disability for an increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. B. Legal Criteria – Lumbar Spine For the purposes of rating disability resulting from arthritis, the lumbar vertebrae are considered a group of minor joints and rated on parity with major joints. See 38 C.F.R. § 4.45. In this case, the Veteran’s lumbar spine disability is evaluated under Diagnostic Code (DC) 5242, governing degenerative arthritis of the lumbar spine rated under the General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees, extension is to 30 degrees, and left and right lateral flexion and rotation are to 30 degrees. The normal combined range of motion, which is the sum of forward flexion, extension, and left and right lateral flexion and rotation, is 240 degrees. 38 C.F.R. § 4.71a at Note (2). The Board acknowledges that the Veteran was diagnosed with IVDS, and IVDS may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, DC 5243, Formula for Rating IVDS. For the purposes of evaluations under the Formula for Rating IVDS, an incapacitating episode is a period of acute signs and symptoms due to IDVS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. In this case, however, the evidence does not document the Veteran’s IDVS-based incapacitating episodes during any period on appeal. Thus, DC 5243 is inapplicable here. The Board notes that the Veteran was also diagnosed with but not service-connected for thoracolumbar rotoscoliosis; this service connection issue is not before the Board and need not be addressed. 38 C.F.R. §§ 4.119, 20.200. Under DC 5242: (1) a 100 percent rating is assigned for unfavorable ankylosis of the thoracolumbar and cervical spine; (2) a 50 percent rating is assigned for unfavorable ankylosis of the thoracolumbar spine; (3) a 40 percent rating is assigned for favorable ankylosis of the thoracolumbar spine or forward flexion of the thoracolumbar spine to 30 degrees or less; (4) a 20 percent rating is assigned for forward flexion of the thoracolumbar spine from 30 to 60 degrees, or the combined range of motion of the thoracolumbar spine of 120 degrees or less, 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; and (5) a 10 percent rating is assigned for forward flexion of the thoracolumbar spine from 60 to 85 degrees, or the combined range of motion of the thoracolumbar spine from 120 to 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 of more of the height. (1) 10 Percent Rating Prior to December 1, 2014 The Veteran’s mechanical low back disability was initially evaluated as 10 percent disabling effective August 1, 1998. The September 16, 2014 VA examiner recorded the Veteran’s limitations on motion consistent with the 10 percent disability criteria under DC 5242. Two and a half months later, the December 1, 2014 VA examiner recorded the Veteran’s limitations on motion consistent with the 20 percent disability criteria. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against an evaluation above 10 percent disabling for the lumbar spine disability prior to December 1, 2014. The evidence does not show that, prior to December 1, 2014, the Veteran’s forward flexion was 60 degrees or less, or his combined range of motion was 120 degrees or less. Rather, his forward flexion was to 65 degrees, and his combined range of motion was 205 degrees. Further, the September 16, 2014, VA examiner reported that the Veteran did not have muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour. And, while the Veteran was diagnosed with a rotoscoliosis in April 2010, that disability is not service connected. The Board acknowledges the Veteran’s disagreement with the September 16, 2014, VA examiner’s findings. Given that a lumbar spine disability is capable of lay observation, the Veteran was competent to report his difficulty to bend, stand, and walk. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, his disagreement is based on his subjective reports of limited daily activities, not objective measurements of motion. The 10 percent rating contemplates a certain limitation on the range of activities the Veteran can perform. The Board, therefore, finds that the Veteran’s lay opinion as to the severity of his disability prior to December 1, 2014, is outweighed by the September 16, 2014, VA examiner’s medical findings. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board acknowledges the Veteran’s opinion that the September 16, 2014, VA examiner’s findings were inconsistent with those made by the December 1, 2014, VA examiner because: (1) the findings were different; and (2) the difference was too substantial to reflect a natural progression of his arthritis of the lumbar spine in less than four months. The Board disagrees. The evidence shows that: (1) during the period separating the September 16 and December 1, 2014, VA examinations, the Veteran’s forward flexion reduced by 15 degrees, and his combined range of motion reduced by 20 degrees; but (2) during the period separating the December 1, 2014, and December 19, 2015, VA examinations, his forward flexion reduced by 35 degrees, and his combined range of motion reduced by 135 degrees. The Board finds that this time-to-severity ratio lends additional credibility to the September 16, 2014, VA examiner’s findings. In sum, the preponderance of the evidence is against the award of a rating above 10 percent for the Veteran's lumbar spine disability prior to December 2014. As a preponderance of the evidence is against the award of an increased evaluation, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R §§ 4.3, 4.7. (2) 20 Percent Rating from December 1, 2014, to July 8, 2015 On December 1, 2014, the VA examiner recorded the Veteran’s limitations on motion consistent with the 20 percent disability criteria under DC 5242. While the Veteran expressed a disagreement with this rating, there is no medical evidence documenting that he: (1) was diagnosed with or suffered from favorable ankylosis of the thoracolumbar spine during any time on appeal; or (2) exhibited forward flexion to 30 degrees or less prior to July 9, 2015. Further, there is no Veteran’s lay statement of record suggesting otherwise. Therefore, the preponderance of the evidence is against the award of a rating above 20 percent for the Veteran’s lumbar spine disability effective December 1, 2014. Because a preponderance of the evidence is against the award of an increased evaluation, the benefit of the doubt doctrine is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R §§ 4.3, 4.7. (3) 40 Percent Rating from July 9, 2015, Forward While the December 19, 2015, VA examiner recorded the Veteran’s limitations on motion that met the 40 percent disability criteria under DC 5242, no evidence of record, including the Veteran’s lay statements, suggests that he has been diagnosed with or has been suffering from an unfavorable ankylosis of the thoracolumbar spine since July 9, 2015, forward. In other words, the Veteran does not assert and the record does not reflect his entitlement to a rating in excess of 40 percent from July 9, 2015. Therefore, the preponderance is against the award of a rating above 40 percent disabling for his lumbar spine disability since July 9, 2015, forward. Because the preponderance of the evidence is against the award of an increased evaluation, the benefit of the doubt doctrine is inapplicable. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anna Kapellan, Associate Counsel