Citation Nr: 1806808	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  09-27 807	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an increased rating in excess of 40 percent for a lower back disability.


ATTORNEY FOR THE BOARD

J. Acosta, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the United States Army from August 1973 to July 1976, from September 1977 to April 1982, and from July 1984 to July 1996

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In July 2017, the Board remanded the matter to the AOJ for further evidentiary development, which included providing a VA examination regarding the status of the Veteran's disability.  The Board is obligated by law to ensure that the AOJ complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  See Stegall v. West, 11 Vet. App. 268 (1998).
 
A review of the record reflects that the AOJ has complied with the Board's remand directives. 


FINDINGS OF FACT

1.  Throughout the appeal period, the Veteran's thoracolumbar spine disability has not manifested in unfavorable ankylosis of the entire thoracolumbar spine.

2.  At no point during the appeal period has the Veteran's thoracolumbar spine disability required a period of prescribed bed rest, outside the already compensated convalescence periods.

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CONCLUSION OF LAW

Throughout the appeal period, the criteria for a disability rating in excess of 40 percent for a thoracolumbar spine disability were not met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243 (2017)


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

In the instant case, notice was provided to the Veteran in May 2007, prior to the adjudication of his claim in September 2007.  The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.

VA satisfied its duty to assist the Veteran in the development of his claim and to seek relevant records.  VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2017).  The AOJ associated the Veteran's service treatment records, identified private treatment records, and VA treatment records with the claims file. 

In September 2007, October 2009 April 2012, July 2013, and August 2017, VA provided the Veteran with a medical examination and obtained a medical opinion addressing the current severity of his disability.  The examination and opinion are adequate for the disability discussed below as the examination reports show that the examiners considered the relevant history of the Veteran's disability.  The examiners provided a sufficiently detailed description of the disabilities, and the examiners provided an analysis to support his opinions.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). 

As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103 (a), § 5103A, or 38 C.F.R. § 3.159  (2015), and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim.

Increased Rating - General

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degrees of disability specified by the schedule are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7 (2017).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  See 38 C.F.R. § 4.3 (2017).

Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern.  Consideration must also be given to a longitudinal picture of the veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted.  See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are 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).

Consideration of factors wholly outside the rating criteria constitutes error as a matter of law.  Massey v. Brown, 7 Vet. App. 204, 207 -08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited.  38 C.F.R. § 4.14.

Increased Rating - Requirements for the Lumbar Spine

The Veteran's low back disability has been evaluated as 40 percent disabling pursuant to 38 C.F.R. § 4.71a , Diagnostic Code (DC) 5237, which is rated under the General Rating Formula for Diseases and Injuries of the Spine, and as of December 4, 2013, the Veteran's lumbar spine disability was rated 40 percent disabling under the same provision.  Because the record shows he also has degenerative disc disease of the spine, his service-connected disability may also be rated under the General Rating Formula or the Formula for Rating Intervertebral Disc Syndrome (IDS) Based on Incapacitating Episodes, whichever results in the higher rating.  38 C.F.R. § 4.71a, DC 5243. 

A 40 percent rating will be assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating will be assigned for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating will be assigned for unfavorable ankylosis of the entire spine.  Id.

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  See 38 C.F.R. § 4.71a (DC) 5237 (Note 5).

Under the General Formula for Rating IDS Based on Incapacitating Episodes, a 40 percent rating is warranted for IDS with incapacitating episodes having a total duration of least four weeks but less than six weeks during the past 12 months.  A 60 percent rating is warranted for IDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months.  38 C.F.R. § 4.71a.

When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse.  38 C.F.R. § 4.45.  There is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court specifically discounted the notion that the highest disability ratings are warranted where pain is merely evident as it would lead to potentially "absurd results."  Id. at 43.  38 C.F.R. § 4.40 provides that joint pain alone, and even pain throughout the entire range of motion, but without evidence of decreased functional ability, does not warrant the minimum compensable rating.

Merits

The Veteran contends that he should be awarded a higher rating for the entirety of the appeal period.  The Veteran low back disability has been rated at least 40 percent for the entirety of the appeal with higher disability rating for his periods of convalescence in April 2007 and April 2009.  The Board finds that evidence demonstrates that the Veteran has never had entire unfavorable ankylosis of the entire thoracolumbar spine . 

The Veteran has been provided VA examination in September 2007, October 2009 April 2012, July 2013, and August 2017 to determine the severity of his low back disability.  With regard to whether a rating greater than 40 percent is warranted for any part of the appeal period, at no point during the appeal period does the evidence demonstrate or the examiners note that the Veteran's lumbar spine disability resulted in unfavorable ankylosis of the entire thoracolumbar spine, as required for a higher rating.  38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237.  While there is evidence that at times the Veteran has flare-ups in the lower back disability which have led to zero degrees of motion and functional loss, this evidence does not establish the functional equivalent of unfavorable ankylosis.  The Board notes again that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  See 38 C.F.R. § 4.71a (DC) 5237 (Note 5).  As for a higher rating under DC 5243, governing IVDS, there is no evidence that the Veteran has been prescribed bed rest due to his lumbar spine disability.  Considering the foregoing, the Board finds that a rating in excess of 40 percent is not supported by the evidence at any time during the appeal period. 

Further, additional compensation due to functional loss beyond the 40 percent rating assigned is not available.  The provisions of 38 C.F.R. §§ 4.40  and 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis, as is the case here.  Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997).


ORDER

Entitlement to an increased rating in excess of 40 percent for a low back disability is denied.




____________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs