Citation Nr: 1807692	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  11-12 892	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to an initial evaluation in excess of 10 percent prior to October 16, 2012, and in excess of 40 percent as of that date, for traumatic arthritis of the lumbosacral spine.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. Rippel, Counsel

INTRODUCTION

The Veteran had active service from August 1968 to August 1970.

This matter comes before the Board of Veterans' Appeals (Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.  The RO found clear and unmistakable error in an August 1971 rating decision that denied service connection for a back condition, granted service connection for traumatic arthritis of the lumbosacral spine, and assigned an evaluation of 10 percent, effective August 20, 1970.  The Veteran disagreed with the evaluation assigned.  

The Veteran testified before the undersigned Veterans Law Judge in October 2012.  

This matter was previously remanded by the Board in July 2014 and again in December 2016 for further evidentiary development.  In a June 2017 rating decision, the Agency of Original Jurisdiction (AOJ) granted a 40 percent rating for the lumbar spine effective from October 16, 2012.  The appeal has continued.  (The Veteran is presumed to be seeking the maximum benefit allowed by law and regulation.  AB v. Brown, 6 Vet. App. 35 (1993).

As the requested medical examination was obtained, additional treatment records were requested and the matter was readjudicated, the Board finds the remand directives have been substantially complied with, and the matter again is before the Board.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  


FINDING OF FACT

Throughout the appeal period, to include the period prior to October 16, 2012, the Veteran's traumatic arthritis of the lumbosacral spine has more nearly approximated forward flexion of the thoracolumbar spine limited, functionally, to 30 degrees or less; with no unfavorable ankylosis of the entire thoracolumbar spine or the entire spine or incapacitating episodes shown.

CONCLUSION OF LAW

The criteria for a rating of 40 percent for traumatic arthritis of the lumbosacral spine have been met for the period on appeal prior to October 16, 2012; the criteria for a rating in excess of 40 percent have not been met or approximated at any time relevant to the claim.  38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.105, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5242 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

      A.  Law

Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations.  38 U.S.C. § 1155.  The disability must be viewed in relation to its history.  38 C.F.R. § 4.1.  A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation.  38 C.F.R. § 4.7.  Separate ratings may be assigned for separate periods of time based on the facts found.  This practice is known as "staged" ratings."  Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2017).

When assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria.  DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59.

The Veteran's traumatic arthritis of the lumbosacral spine is rated under Diagnostic Code (DC) 5242 pursuant to the General Rating Formula for Diseases and Injuries of the Spine at 38 C.F.R. § 4.71, with reference to the DC 5010 for traumatic arthritis.  

According to the General Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  a 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  For VA compensation purposes, fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  38 C.F.R. § 4.71a.  A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5243 (2017) (the General Rating Formula for Diseases and Injuries of the Spine is used for conditions which result in symptoms such as pain (with or without radiation), stiffness, or aching of the area of the spine affected by residuals of injury or disease).  Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242, Note (1).  

The rating schedule also includes criteria for evaluating intervertebral disc disease (IVDS).  A 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  A 20 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  A rating of 40 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of least 4 weeks but less than 6 weeks during the past 12 months.  Finally, a rating of 60 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  The criteria direct that intervertebral disc syndrome be evaluated either on the total duration of incapacitating episodes over the past 12 months or under either the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in the higher evaluation. 

For purposes of evaluation under 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.  38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1).  If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment shall be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.  38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (2). 

The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show.  The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran.

      B.  Analysis

Parenthetically, it is noted that separate compensable ratings are in effect for right and left lower extremity radiculopathies as associated objective neurological abnormalities.  See April 2011 and June 2017 rating decisions.  The Veteran has not appealed these ratings.  Moreover, the February 2017 spinal examination reflects there are no other neurologic abnormalities related to the thoracolumbar spine, and the radiculopathy present was considered mild.  

The criteria for a rating in excess of 40 percent are not met or approximated at any time relevant to this claim.  Here, the February 2017 VA spinal examination reflects that flexion is limited from 15 to 25 degrees and extension is limited from 0 to 15 degrees.  This supports a 40 percent rating based on limited flexion.  However, the Veteran's IVDS has resulted in no incapacitating episodes, and there is no unfavorable ankylosis.  

Thus, the critical question is whether, at any time prior to October 16, 2012, a rating in excess of 10 percent is warranted.  The Board finds for the following reasons that the criteria for a 40 percent rating are approximated at all times relevant to the claim, including the period on appeal prior to October 16, 2012.  

A detailed history and medical review of this disability is recorded in the February 2017 VA examination report.  The Veteran had his first lumbar spine surgery (lumbar laminectomy) in 1968 and four months later he was drafted into the Army.  He reportedly fell down the stairs in the Army and hurt his back.  After leaving service in 1970 he had a second lumbar spine surgery (debridement of scar tissue-October 1971).  He had spinal fusion in 1994 and 2003, with hardware removal in April 2010.  He had spinal cord stimulators implanted in December 2010 and again in April 2016.  Treatment with radiofrequency neurolysis was performed in December 2016.  The current diagnoses are post laminectomies syndrome, lumbar spine, bilateral radiculopathy and spondylosis, lumbar spine.  Pain and severe limitation were noted to continue despite all of the treatment.  

While two prior VA examinations in January 2010 and March 2011 indicate relatively full lumbar flexion, the Veteran reported constant pain in the lumbosacral area in addition to shooting pain into the legs.  Also, although ankylosis was noted in March 2011, it was noted that in fact unfavorable ankylosis was not present.  

In his October 16, 2012 testimony, the Veteran indicated that his back condition had gotten worse.  He noted that his history was characterized with severe limiting low back pain which has required many surgeries since service.  He has great difficulty in performing normal activities such as tying his shoes.  He also indicated that in one of the prior VA examinations, his range of motion was not actually measured.  

As the Veteran's testimony was deemed generally credible, and the undersigned ordered a new spine examination that was ultimately accomplished in 2017.  

The examination and treatment record are replete with reference to the fact that the Veteran walks with a hunched over stance, bent over at the waist.  The examiner in February 2017 noted that the Veteran stands with a hunched forward flexed posture.  His flexion and extension measurements begin at a rest position that is 15 degrees in flexion.  The following assessment was made:

Based on his history, physical exam, imaging studies and a review of the previous medical records, [the Veteran] has chronic back pain and radicular pain due to post-laminectomy (failed back) syndrome. Although the initial injury was likely a lumbar disc herniation, there are no records from the initial injury or the initial surgeries to confirm this diagnosis. The exact dates of the diagnosed conditions is unclear although it is clear that the initial lumbar surgery was in January 1968. The records show that this condition worsened in service and has continued to be progressively problematic. The current x-rays show a fusion from L3 to S1 with laminectomies at L4 and L 5.

Based upon the objective testing, the decision to award the 40 percent rating not before the October 16, 2012, hearing is at best arguably supportable.  The Veteran testified that to the effect that his symptoms were severe throughout the appeal period.  The Board finds that the Veteran's testimony as to the degree of impairment supports a 40 percent rating at all times relevant to the claim.  Here, the Veteran has never indicated that his symptoms dramatically worsened on October 16, 2012, and in fact strongly argues that the lumbar spine symptoms have been consistently severe since he sent in a communication in July 2008 indicating his intent to "amend" his claim of service connection to include his lumbar spine.  Treatment records dated within that time period suggest severe limited mobility and ongoing chronic pain which necessitated multiple surgeries.  The February 2017 examiner's opinion supports the longstanding nature of the severe impairment.  

Accordingly, the Board finds that the evidence more nearly approximates the 40 percent rating than any other rating for the entire period on appeal prior to October 16, 2012.  

The intent of the Rating Schedule is 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.  When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability.  Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).  As required by 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing, and if possible, with the range of opposite undamaged joint.  Correia v. MacDonald, 28 Vet. App. 158 (2016 ).  See DeLuca.  However, the appellant is now in receipt of the maximum evaluation for limitation of motion.  In fact, the evaluation would be consistent with no appreciable motion.  As such, further discussion of Correia and DeLuca would serve no useful purpose and would not provide for a higher evaluation based upon limitation of motion.  See Johnston v. Brown, 10 Vet. App. 80 (1997). 

Accordingly, the 40 percent rating adequately represents any functional impairment attributable to the disability at all relevant times.  See 38 C.F.R. §§ 4.41, 4.10 (2017).  

For all the foregoing reasons, the preponderance of the evidence is against a rating in excess of 40 percent at any time during the pendency of the claim for this disability.  Hart v. Mansfield, 21 Vet. App. 505 (2007).





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Finally, neither the Veteran (nor his representative) raised issues with respect to VA's duty to notify or assist or presented other procedural arguments that were not addressed above.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  


ORDER

For the period on appeal prior to October 16, 2012, a 40 percent rating, and no higher, is granted for traumatic arthritis of the lumbosacral spine; a rating in excess of 40 percent is denied at all times relevant to the claim.  




____________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs