Citation Nr: 1807450 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-03 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an effective date prior to March 7, 2011 for a 40 percent rating for lumbar strain. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from June 1986 to September 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The record indicates that the Veteran was issued a Statement of the Case in November 2017 for the issues of entitlement to an increased rating for a depressive disorder, and entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). He submitted a VA Form 9 Appeal to Board of Veterans' Appeals in December 2017. However, it appears that there is ongoing development pertaining to these issues as neither has been certified to the Board. Therefore, they will be subject of a separate decision by the Board if not otherwise resolved to the satisfaction of the Veteran prior to their certification. FINDINGS OF FACT 1. The Veteran's claim for entitlement to an increased rating for lumbar strain was received on May 9, 2006. 2. The date that entitlement to a 40 percent rating for lumbar strain first arose was on March 7, 2011, which is the first time that limitation of forward flexion of the lumbar spine to 30 degrees was demonstrated. CONCLUSION OF LAW The criteria for an effective date prior to March 7, 2011 for a 40 percent rating for lumbar strain have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.157 (2005); 38 C.F.R. §§ 3.400, 4.7, 4.40, 4.45, 4.59, 4.71a, Code 5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance In this case, the record indicates that the Veteran was provided a notification letter in June 2006 prior to the initial evaluation of his claim. Although a copy of this letter is not contained in the claim file, neither the Veteran nor his representative has complained that it was inadequate. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In regards to the duty to assist, both private and VA treatment records have been obtained for the period in question, and the Veteran has not identified any records that have not been obtained. Indeed, the Veteran stated in a January 2016 Report of General Information that he wanted the claim processed with the available records on file. As the matter on appeal will be decided on medical evidence dating for the period between one year prior to the receipt of the Veteran's claim and the date of increase on March 7, 2011, a current examination would not be relevant. The Veteran declined his right to a hearing. The Board will proceed with the adjudication of this claim. Earlier Effective Date The Veteran contends that he is entitled to an effective date for the 40 percent rating assigned to his service connected lumbar strain prior to the March 7, 2011 date that is currently assigned. He notes that his claim for an increase was submitted on May 9, 2006 and he believes the increased rating should be effective from that date if not earlier. The record confirms that the Veteran's claim for an increased rating for his lumbar strain with claimed radiation to the lower extremities was received on May 9, 2006. 1/22/2018 Translation Related, pp. 165-166. In general, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. For increases, the effective date will be the receipt of the claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o). The effective date of an increase in disability compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). If an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125(1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). Therefore, the Board must review the record to ascertain whether or not it is factually ascertainable that the Veteran became eligible for a 40 percent rating within one year prior to the receipt of the May 9, 2006 claim. In the alternative, the Board notes that at the time of the Veteran's May 9, 2006 claim, regulations allowed VA outpatient or hospital records to be accepted as an informal claim for an increased rating. 38 C.F.R. § 3.157(b)(1). The Veteran's lumbar strain is evaluated under the rating criteria for lumbosacral strain. The rating code for lumbosacral strain states it should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or the combined range of motion of the cervical spine is not greater than 170 degrees; or, 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. Unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent rating. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. The combined range of motion refers to the sum of the forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). Each range of motion measurement is to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (4). Any associated objective neurologic abnormalities, including but not limited to bowel and bladder impairment, are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1) to General Rating Formula for Diseases and Injuries of the Spine. There are other factors which must be considered in addition to those contained in the applicable rating code. The Board recognizes that the disability of the musculoskeletal system is primarily the inability due to damage or an infection in parts of the system to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Factors to be considered include pain on movement, weakened movement, excess fatigability, and incoordination. 38 C.F.R. §§ 4.40, 4.45. Functional impairment due to pain must be considered. 38 C.F.R. § 4.59. After a review of the evidence, the Board finds that entitlement to an increased rating prior to March 7, 2011 is not supported. Although the Veteran's claim was received on May 9, 2006, the date entitlement arose was not until March 7, 2011. This was the date of the first evidence to show that the Veteran met the rating criteria for an increase. 38 C.F.R. § 3.400(o). The earliest available evidence from the relevant time period includes private treatment records from September 2005. These show that the Veteran complained of morning stiffness, with pain in the back and legs. On examination, there was decreased range of motion of the lumbosacral spine. The assessment was lumbosacral radiculopathy. 1/22/2018 Translation Related, pp. 136. However, the Board notes that the range of motion of the lumbosacral spine was not recorded. The available information does not show forward flexion of the thoracolumbar spine to 30 degrees or less, or the favorable ankylosis of the entire thoracolumbar spine that would warrant a 40 percent rating. March 2006 private treatment records state that the Veteran complained of low back pain with radiation to the legs, worse on the left side than the right. He was unable to perform repetitive bending. Range of motion was decreased an estimated 50 degrees, which equates to 40 degrees of flexion. 1/22/2018 Translation Related, pp. 132. In conjunction with his claim, the Veteran was afforded a VA examination of the spine in June 2006. He complained of increased intensity of low back pain, decreased range of motion, and stiffness in his back. The Veteran reported increased pain with activities such as bending or lifting. He experienced a pressure sensation in the low back that radiated to the buttocks. There was no fecal or urinary incontinence. The Veteran reported that he was able to continue to walk and function despite low back pain during flare-ups. He could walk 20 to 30 minutes before having increased low back pain. On examination, the Veteran had 90 degrees of flexion (painful at 65 degrees); 30 degrees of extension (painful at 20 degrees); 30 degrees of lateral bending to the right and left; and 30 degrees of lateral bending bilaterally. The examiner indicated that these restrictions were present due to pain following repetitive use. On neurological examination, sensation was intact to pinprick, reflexes were 2+, and straight leg raising was negative. The Veteran did not have any incapacitating episodes requiring bed rest prescribed by a physician during the previous year. The only diagnosis was lumbar strain. 6/23/2006 VA Examination, pp. 1, 8. As this examination does not demonstrate limitation of forward flexion to 30 degrees or less even with consideration of pain, weakness, fatigability or incoordination, or any form of ankylosis, it does not support a 40 percent rating. Private September 2006 and December 2006 notes continues to show morning stiffness and low back pain with decreased range of motion, but again fails to record the actual range of motion or show ankylosis. 1/22/2018 Translation Related, pp. 136, 138. A June 2008 private treatment record also shows morning stiffness and decreased range of motion of the lumbosacral spine but does list the range of motion. 1/22/2018 Translation Related, pp. 138. An April 2009 private imaging study does not include range of motion studies, and so does not support a higher rating. 7/29/2009 Medical Treatment Record - Non-Government Facility, p. 1. Private medical records dated through 2009 continue to show decreased range of motion of the spine with reports of radiation but without including measurements. 12/8/2009 Medical Treatment Record - Non-Government Facility, p. 9; 1/22/2018 Translation Related, pp. 130. VA treatment records show that a January 2011 electrodiagnostic test was normal, with no evidence of right radiculopathy. A previous study was noted to have also been negative for left radiculopathy. January 2011 VA physical therapy records show that the Veteran complained of low back pain after sitting for long periods of time and then standing, or when bending forward. He also reported radiating pain with repetitive back motion. The Veteran continued to undergo physical therapy with some improvement through March 2011. His pain was described as intermittent. Range of motion was said to be reduced but not described in terms of degrees. 3/22/2012 Legacy Content, Capri, pp. 12-20. A review of the pertinent, competent medical and lay evidence clearly establishes that the Veteran complained of low back pain and received treatment from both private and VA sources dating from September 2005, which was several months before he submitted his claim. Unfortunately, the evidence does not show that the criteria for a 40 percent rating were met during this period. Most records fail to include range of motion measurements of the lumbar spine. Of those that do, the March 2006 private records appear to show forward flexion to 40 degrees, and the June 2006 VA examination shows it to 65 degrees, which also appears to account for limitations due to repetitive motion. As none of these records show limitation of forward flexion to 30 degrees or less or ankylosis of the entire spine, they do not provide a basis for an effective date before March 7, 2011, which is when the criteria for an increased rating were first demonstrated. 38 C.F.R. §§ 3.400(o)(2), 4.71a, Code 5237. Although not specifically contested by the Veteran, the Board has considered whether or not the evidence supports separate ratings based on neurologic abnormalities. The evidence shows that the Veteran complained of radiating pain at times during this period. However, there must be objective evidence of these neurologic abnormalities, and as electrodiagnostic testing was normal, there is no basis for ratings based on radiculopathy to the lower extremities. The Veteran denied other neurologic problems such as bladder impairment. 38 C.F.R. § 4.71a, Note (1). General Rating Formula for Diseases and Injuries of the Spine. Finally, the Board notes that the record does not include a diagnosis of intervertebral disc syndrome, and even if there was such a diagnosis, the June 2006 VA examination was negative for incapacitating episodes, and thus would not provide a basis for a rating higher than 20 percent. See 38 C.F.R. § 4.71a, Code 5243. In reaching the above finding, the Board has considered the provisions of 38 C.F.R. § 3.155 relating to informal claims. While no longer in effect (as of March 24, 2015, earlier during the pendency of the appeal 38 C.F.R. § 3.155 stated that any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim; such an informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2005). The Board has reviewed the record and finds no communications that would constitute an informal claim under 38 C.F.R. § 3.155 such as to enable an earlier effective date. There was no such communication from the Veteran between a September 1996 rating decision that last confirmed the 20 percent evaluation for his lumbar strain and the May 9, 2006 claim. It is further noted that under 38 C.F.R. § 3.157 (2005) as in effect earlier in the pendency of the appeal, a report of examination or hospitalization will be accepted as an informal claim for benefits. Once again, a review of the record is negative for any such examination or hospitalization. The most recent VA examination prior to his claim was dated April 1996, and was considered a September 1996 rating decision that confirmed the 20 percent rating for lumbar strain. The Veteran did not initiate an appeal of this decision, and it is final. 38 U.S.C. § 7105 (2014); 38 C.F.R. §§ 3.105(a), 20.200 (2017). There were no unadjudicated claims, formal or informal between this decision and the claim received on May 9, 2006. ORDER An effective date prior to March 7, 2011 for a 40 percent rating for lumbar strain is denied. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs