Citation Nr: 1807002 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 13-16 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for lumbosacral spine strain with degenerative changes and L5-S1 disc protrusion prior to July 14, 2017. 2. Entitlement to an evaluation in excess of 20 percent for lumbosacral spine strain with degenerative changes and L5-S1 disc protrusion from July 14, 2017. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B.A. Evans, Associate Counsel INTRODUCTION The Veteran had active service from January 2007 to January 2011 in the United States Army. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This case was previously before the Board in June 2017 (not before the undersigned), at which time the issue currently on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. The introduction section in the June 2017 Board Remand included total disability rating based on individual unemployability (TDIU), however this issue was never on appeal before the Board, and its inclusion appears to have been a typographical error. FINDING OF FACT The Veteran's lumbosacral spine strain was properly rated at 10 percent prior to July 14, 2017, and properly rated at 20 percent after July 14, 2017. CONCLUSIONS OF LAW 1. The criteria for an initial rating for a lumbosacral spine strain in excess of 10 percent before February 17, 2017, are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237-5243 (2017). 2. The criteria for a rating for a lumbosacral spine strain in excess of 20 percent after February 17, 2017, are not met. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237-5243 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). 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 service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient. A coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). Where there is a question as to which of two ratings shall 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 assigned. 38 C.F.R. § 4.7 (2017). In every instance where the minimum schedular rating requires residuals and the schedule does not provide for a 0 percent rating, a 0 percent rating will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31 (2017). The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2017). However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. § 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). A VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59, which directs that the joints involved should be 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. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2017). When rating joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45 (2017). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017). Disabilities of the spine are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2017). Intervertebral disc syndrome is rated under the General Formula for Rating Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). Under the General Rating Formula for Rating Diseases and Injuries of the Spine, effective September 26, 2003, with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; or the combined range of motion if the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; if forward flexion of the cervical spine is greater than 30 degrees, but not greater than 40 degrees; or the combined range of motion of the cervical spine is greater than 170 degrees, but not greater than 335 degrees; if there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gain or abnormal spinal contour; or, if there is a vertebral body fracture with loss of 50 percent for more of the height. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2017). A 20 percent rating is warranted if forward flexion of the thoracolumbar spine is 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; if forward flexion of the cervical spine is greater than 15 degrees, but not greater than 30 degrees; or the combined range of motion of the cervical spine not greater than 170 degrees; or, if 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2017). A 30 percent rating is warranted if forward flexion of the cervical spine is limited to 15 degrees or less; or if there is favorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2017). A 40 percent rating is warranted if forward flexion of the thoracolumbar spine is limited to 30 degrees or less; if there is favorable ankylosis of the entire spine; or, if there is unfavorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2017). A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2017). Radiculopathy may be rated under Diagnostic Code 8250. 38 C.F.R. § 4.71a, Diagnostic Code 8250 (2017). A 10 percent rating is warranted is assigned for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. An 80 percent rating is assigned for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.71a, Diagnostic Code 8250 (2017). The Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the record with would lead to the conclusion that the current evidence of record is not adequate for rating purposes. 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis Rating at 10 percent before July 14, 2017 The Veteran was service-connected at 10 percent rating for his lumbar spine strain with degenerative changes and L5-S1 disc protrusion in March 2013. The VA Compensation & Pension (C&P) examination conducted at the Columbia, South Carolina VA Medical Center (VAMC) in January 2011 noted dull and constant lower back pain. There was no radiculopathy and no affect on ambulation or incapacitation. The examination showed ranging from 0 to 90 degrees of flexion without pain, extension from 0 to 30 degrees with end of range pain, and bilateral flexion and rotation from 0 to 30 degrees without pain. Range of motion was not additionally limited by repetitive use on exam. There was tenderness on the left L1-L2 paraspinal muscles. There were no spasms, and straight leg raise and gait were normal. VAMC treatment records from April 2011 to March 2013 showed continued complaints of sharp lower back pain. An August 2011 VA medical record noted that the Veteran's lumbar spine was very slightly rotated to the left. An October 2011 VAMC MRI showed the L4-L5 image demonstrated mild bilateral face arthropathy but no significant canal or foraminal narrowing. The L5-S1 images demonstrated mild bilateral facet arthropathy with a small broad-based disc protrusion but no neural foramina narrowing. No pars defects were appreciated. The MRI impression was mild lower lumbar spondylosis. In May 2015 at the Columbia, South Carolina VAMC, the Veteran underwent another C&P examination for his back. He showed normal range of motion in initial measurements of all spinal range of motion tests. However upon observed repetitive use, there was pain and lack of endurance lowers his extension to 0 to 20 degrees, and his right and left lateral flexion to 0 to 15 degrees, and also his right and left lateral rotation to 0 to 15 degrees. Measuring his range of motion repeated use over time, the examiner noticed pain and lack of endurance, and the Veteran's extension was limited to 0 to 20 degrees. The Veteran showed no guarding or muscle spasm, and no ankylosis of the spine. The examiner noted that the thoracolumbar spine condition did not impact the Veteran's ability to work, but in additional remarks noted that the Veteran claimed not to have been able to complete his graduate studies due to his back condition, and that there was pain and limited range of motion in extension significantly limiting his functional ability during repeated motions, overall constituting a moderate amount of severity. An August 2009 addendum opinion related to the Veteran's service-connected PTSD noted he was unable to complete his graduate studies because his laboratory performance was impacted by his anxiety of working with other people in a small, enclosed space. There was no more relevant medical evidence in the record prior to July 2017. The Veteran was properly assigned and continued at a rating of 10 percent during this period for degenerative changes to the thoracolumbar spine, L5-S1 disc protrusion based on the combined range of motion of the thoracolumbar spine greater than 235 degrees; localized tenderness not resulting in abnormal gait or abnormal spinal contour, and painful motion. To receive a rating of 20 percent, or higher, the forward flexion of the Veteran's thoracolumbar spine would need to be greater than 30 degrees, but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine would need to be greater than 120 degrees, or the Veteran would have to show that there were muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The medical evidence to this point did not show this, and thus a higher rating was not warranted. Therefore, the rating of 10 percent for degenerative changes to the thoracolumbar spine, L5-S1 disc protrusion from January 31, 2011 to July 14, 2017 is continued. Rating at 20 percent after July 14, 2017 The Veteran was administered a July 2017 C&P examination at the Columbia, South Carolina VAMC in response to the Board's June 2017 remand. The C&P examiner found that the Veteran did suffer from flare-ups, when either standing or sitting for long periods of time, or from heavy lifting. As such, the functional loss or impairment was checked as positive, due to the Veteran's inability to sit or stand for long periods, as well as not drive for long periods. The Veteran's normal range of motion was found to be impaired in several areas: extension was limited at 0 to 25 degrees, and right and left lateral flexion were limited to 0 to 20 degrees. There was no limitation on forward flexion. Pain was noted that caused functional losses during extension, right and left lateral flexion. There was no pain on weight bearing. The Veteran did have guarding or muscle spasms that resulted in abnormal gait or abnormal spinal contour, as well as instability of station, disturbance of locomotion, interference with sitting, interference with standing. The Veteran was normal for muscle strength, reflexes, light tough test and straight leg raise for both legs. The Veteran reported occasionally using a brace. There was an MRI performed and no arthritis was discovered. In addition the examiner found no ankylosis. The Veteran did exhibit radiculopathy in both his left and right extremities. There was numbness in both. The nerve roots involved were the L4/L5/S1/S2/S3 in both lower extremities. The examiner concluded that the Veteran had mild radiculopathy. The RO service connected the Veteran for radiculopathy in both lower extremities at 10 percent in its August 2017 rating decision. There are no more relevant medical records in the Veteran's claims file regarding his lower back disability following the July 2017 rating decision. The next higher rating than 20 percent for a thoracolumbar spine disability is 40 percent. A 40 percent rating is warranted if forward flexion of the thoracolumbar spine is limited to 30 degrees or less or if there is favorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2017). The July 2017 rating decision did not find that there was any limitation to the Veteran's forward flexion of his thoracolumbar spine, and found no ankylosis. In the Veteran's May 2013 Form 9, he claimed that due to the fixed lumbar vertebrae in the flexion position, that he has favorable ankylosis. However, while a Veteran is competent to report lay symptoms, he is not competent to diagnose himself, and his assertion was not supported by competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board finds that the July 2017 Columbia, South Carolina VA C&P examination and RO properly complied with the instructions of the July 2017 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher scheduler rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Both the pain and functional impairments discussed in the Veteran's December 2017 Appellate Brief and his May 2013 Form 9 are contemplated by the Rating Schedule. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). ORDER Entitlement to an initial rating in excess of 10 percent for lumbosacral spine strain with degenerative changes and L5-S1 disc protrusion prior to July 14, 2017 is denied. Entitlement to an evaluation in excess of 20 percent for lumbosacral spine strain with degenerative changes and L5-S1 disc protrusion from July 14, 2017 is denied. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs