Citation Nr: 1806563	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  14-09 064	)	DATE
	)
	)

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


THE ISSUE

Entitlement to a compensable rating in excess of 20 percent for degenerative disc and joint disease of the thoracolumbar spine.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

E. Jones III, Associate Counsel 



INTRODUCTION

The Veteran served on active duty in the United States Air Force from February 1999 to November 2005.

This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2013 rating decision of the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). 


FINDING OF FACT

Throughout the period on appeal, the Veteran exhibited forward flexion of the thoracolumbar spine greater than 30 degrees, with no ankylosis.


CONCLUSION OF LAW

The criteria for a rating in excess of 20 percent for degenerative disc and joint disease of the thoracolumbar spine have not been met.  38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VA notice letters must also include notice of a disability rating and an effective date for award of benefits if service connection is granted.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Here, the RO provided notice letter to the Veteran in April 2013 that notified her of what information and evidence must be submitted to substantiate the claims for an increased rating, what information and evidence must be provided by the Veteran, and what information and evidence would be obtained by VA.  The Veteran was told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence to the RO in support of her claims.  The letter also provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date.  The content of the letters complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).

The record establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of her claims.  The Board notes that there has been no allegation from the Veteran or her representative that she has been prejudiced by any notice defects.  See Shinseki v. Sanders, 556 U.S. 396 (2009).  Thus, there is no prejudice to the Veteran in the Board's considering the issues on their merits.  The Board finds that the duty to notify provisions have been fulfilled, and any defective notice is nonprejudicial to the Veteran and is harmless. 

The Board further finds that all relevant evidence has been obtained, and the duty-to-assist requirements have been satisfied.  All available service treatment records (STRs) were obtained, and VA medical records and private medical records are associated with the claims file.  The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the claims. 

The Veteran underwent VA examinations in 2013 and 2015, to obtain medical evidence regarding the nature and severity of her spinal disability.  The Veteran argues that her April 2013 and September 2015 VA examinations are invalid because the examiners did not use a goniometer to measure her thoracolumbar flexion, and because neither examination excluded hip flexion, without which she believes her thoracolumbar flexion would measure 30 degrees.  The Veteran therefore requests a new VA examination without these deficiencies.
The Board finds the VA examinations adequate for adjudication purposes.  The examinations were performed by medical professionals based on review of the claims file, solicitation of history and symptomatology from the Veteran, and examination of the Veteran.  The examination reports are accurate and fully descriptive.  Opinions were provided as to the severity of the disabilities.  For both the April 2013 and September 2015 examinations, instructions to the examiner specified use of a goniometer.  There is no indication the examiners did not use goniometers.  Furthermore the purpose of a goniometer is to assist in more precise measurements of motion.  There is also no indication that the examiners improperly measured forward flexion of the thoracolumbar spine.  If the Veteran's forward flexion was inaccurately measured, this would be reflected in range-of-motion measurements from her private treating sources, but it is not.  In short, the Veteran has not otherwise met his burden of showing that the examination was deficient in any way or unduly compromised. See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009) (holding that, under the rule of prejudicial error, it is the burden of the claimant to show harmful error); see also Sickels, 643 F.3d at 1365-66 (holding that the initial burden is on the claimant to show that an examination was inadequate); accord Rizzo, 580 F.3d at 1290-1291. The Board finds that the examinations are adequate and VA's duty to assist has been met.  See 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The Board finds that the duties to notify and assist the Veteran have been met, and no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims.

II.  Legal Criteria

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 civil occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. 

Where entitlement to compensation has already been established and 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).  Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible.  See Fenderson v. West, 12 Vet. App. 119 (1999). 

Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence.  38 U.S.C. § 7104(a).  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3.

Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined.  38 C.F.R. § 4.71a. 

Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  Id.

A 40 percent rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine.  A rating of 50 percent is assigned where there is unfavorable ankylosis of the entire thoracolumbar spine and a rating of 100 percent is assigned where there is unfavorable ankylosis of the entire spine.  Id.

In general, the rating criteria take into account pain and other symptoms.  In the case of spinal disabilities, pain is often the primary factor limiting motion and is almost always present when there is muscle spasm.  Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurological sections of the rating schedule.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243.   However, the Board must consider functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 when deciding whether a higher disability evaluation is warranted.  See also DeLuca v. Brown, 8 Vet. App. 202 (1995).  Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain.  38 C.F.R. § 4.40.  A part that becomes painful on use must be regarded as seriously disabled.  Id.  

Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes with a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months; a 40 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months; and a 60 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes having a total duration of at least 6 weeks, during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243. 

An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  Id., Note 1.

III.  Analysis

The Veteran contends that her thoracolumbar spine degeneration should be rated in excess of 20 percent.  

Thoracolumbar spine examinations have consistently shown forward flexion in excess of 30 degrees.  The Veteran's forward flexion measured 75 degrees at the April 2013 examination, and 70 degrees at the September 2015 examination.  The examiners all noted that the Veteran has no ankylosis of the spine.

These measurements are consistent with range-of-motion observations by the Veteran's private treating sources.  For example, in April 2007, the Veteran's physical therapist noted thoracic and lumbar range of motion within normal limits, though with thoracic pain.  In January 2014, her spine and rehabilitation doctor described mildly reduced lumbosacral range or motion, with a decrease in segmental movement of the lumbar spine and indicated she had "fairly functional thoracic range of motion."  

In sum, the record reflects that her forward flexion has exceeded 30 degrees at all times relevant to this decision, with no ankylosis of the spine.

With regard to functional loss due to pain, weakness, fatigability, or incoordination, the Board acknowledges the Veteran's complaints of pain; however, each of the VA examinations tested the Veteran's forward flexion following three repetitions and found no change in the measurement.  The Veteran showed no fatigue, impaired endurance, or weakened movement, though she complained of pain on repeated movement.  Although the Veteran has described flare-ups in her back, the September 2015 examiner stated that her performance on that examination was consistent with her functional abilities during a flare-up.  Thus, any additional limitation due to pain does not more nearly approximate a finding of limitation of flexion of the thoracolumbar spine to less than 30 degrees. 38 C.F.R. § 4.45, 4.71a, Diagnostic Code 5243; DeLuca, 8 Vet. App. at 202; Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

In addition, the Board has considered whether higher ratings are warranted for any neurological impairment associated with the Veteran's low back disability. Although the Veteran mentioned numbness and tingling in her left arm in 2013, she did not mention symptoms of radiating pain of the lower extremities at any VA examination, and none of the VA examiners found evidence of radiculopathy.  Strength testing, sensory examination and straight leg raise testing was normal in 2013 and 2015 and the examiner specifically indicated there were no signs and symptoms due to radiculopathy and no other neurological abnormalities.  None of the examinations revealed evidence of any other neurological abnormality caused by the Veteran's thoracolumbar degeneration, or of IVDS.  Private treatment records also do not reflect complaints or testing indicative of radiculopathy.  Accordingly, the record does not support a separate rating for any additional neurological disabilities during this period.

Based on the foregoing, the Board concludes that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran's service-connected lower back disability.


ORDER

A rating in excess of 20 percent for degenerative disc and joint disease of the thoracolumbar spine is denied.



____________________________________________
H. SEESEL 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs