Citation Nr: 1808178	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  11-31 919	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to an increased rating for service-connected post-operative residuals of spondylolisthesis and spondylosis L5 to S1 (low back disability), currently evaluated as 40 percent disabling.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Carole Kammel, Counsel
INTRODUCTION

The Veteran had active service from August 1970 to May 1973. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  By this rating action, the RO, in part, continued a 40 percent disability rating assigned to the service-connected post-operative residuals of spondylolisthesis and spondylosis L5 to S1.  The Veteran appealed the RO's determination to the Board.

In February 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is contained in the Veteran's Legacy Content Manager Documents electronic claims file.

In September 2014, the Board, in part, remanded the matter on appeal to the Agency of Original Jurisdiction (AOJ) for additional development.  The requested development has been accomplished and the issue has returned to the Board for further appellate consideration. 


FINDING OF FACT

The Veteran's service-connected low back disability has not more nearly approximated unfavorable ankylosis of the thoracolumbar spine, or incapacitating episodes of at least six weeks during a 12 month period.


CONCLUSION OF LAW

The criteria for an increased disability rating in excess of 40 percent for service-connected low back disability have not been met.  38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5239 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

Neither the Veteran nor his representation has raised any issues with the duty to notify or duty to assist.  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).

The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in February 2014.  The Board finds that all requirements for hearing officers have been met.  38 C.F.R. § 3.103 (c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010).  To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand.

The Board also finds that there has been compliance with the prior September 2014 remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).

II. Merits Analysis

The Veteran seeks an increased disability rating in excess of 40 percent for the service-connected lumbar spine disability.  After a discussion of the laws and regulations governing increased rating claims and those governing rating of spinal disabilities, the Board will analyze the merits of the claim. 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017).  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155 ; 38 C.F.R. 
§ 4.1 (2017).  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 for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3 (2017). 

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2017).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282   (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999). 

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the rating, staged ratings may be assigned for separate periods of time.  Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings).

When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating is assigned.  38 C.F.R. § 4.7 (2017).  After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 U.S.C. § 5107 (2014); 38 C.F.R. §§ 3.102, 4.3 (201).

The Veteran's lumbar spine disability has been rated under Code 5239 and the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula, the following ratings will apply:  a 40 percent rating requires forward flexion of the thoracolumbar spine to be 30 degrees or less, or for there to be favorable ankylosis of the entire thoracolumbar spine; a 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent requires unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a.

Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  38 C.F.R. § 4.71a, Note (5). "Unfavorable ankylosis" is defined, in pertinent part, as "a condition in which... 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."  Id. 

Any associated objective neurologic abnormalities should be rated separately under an appropriate Code.  Id., Note 1.

In determining the degree of limitation of motion, the provisions of 38 C.F.R. 
§§ 4.10, 4.40, and 4.45 are for consideration.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.  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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45.

The Board finds that the preponderance of the evidence of record is against an increased disability rating in excess of 40 percent for the service-connected lumbar spine disability.  As noted above, a 50 percent rating requires evidence unfavorable ankylosis of the entire thoracolumbar spine.  This has not been demonstrated in the Veteran's case.  While VA spine examination reports, dated in August 2010, January 2012, August 2015, May 2016, and June 2017 disclose that the Veteran had limited range of lumbar spine motion, notably in forward flexion and extension, there was no evidence of ankylosis, favorable or otherwise.  The other medical records also do not indicate lumbosacral spine ankylosis.  The examination reports and medical records of evidence also do not indicate that the Veteran's symptoms more nearly approximated ankylosis.

In addition, these same examination reports and medical records do not indicate, and the Veteran has not alleged, incapacitating episodes having a total duration of at least six (6) weeks during any 12 month period.  Therefore, the Veteran is properly rated under the General Formula for rating spinal disabilities.  38 C.F.R. § 4.71a, Diagnostic Code 5243.

Where a musculoskeletal disability is currently evaluated at the maximum schedular rating based upon limitation of motion, the DeLuca factors are not applicable.  See Johnston v. Brown, 10 Vet. App. 80 (1997).  Therefore, since the currently assigned 40 percent disability rating is the maximum rating available for limitation of motion absent ankylosis of the entire thoracolumbar spine under the General Rating Formula for Diseases and Injuries of the Spine, analysis required by DeLuca would not result in a higher schedular rating.

Lastly, the Board notes that service connection has been separately granted for right lower extremity radiculopathy and left lower extremity leg cramps and tingling, each associated with residuals of the service-connected low back disability.  See 38 C.F.R. § 4.71a, Note 1.  These ratings were not appealed.  The record does not reflect any other neurologic abnormalities associated with the Veteran's low back disability; accordingly, additional separate neurological compensable ratings are not warranted. 

While there have been fluctuations in the manifestations of the Veteran's service-connected lumbar spine disability, the evidence shows no distinct periods of time during the course of this appeal during which it has varied to such an extent that a rating greater or less than the rating assigned herein.  See Hart, 21 Vet. App. at 507. In summary, the preponderance of the evidence of records shows that the Veteran's service-connected lumbar spine disability warrants an evaluation of 40 percent, but no higher.  Accordingly, there is no reasonable doubt to be resolved in this case.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In adjudicating a claim the Board must assess the competence and credibility of the veteran.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362 (2005).  The Veteran is competent to give evidence about what he observes or experiences concerning his back pain and symptoms.  However, the Veteran is not competent to identify a specific level of disability according to the appropriate diagnostic code.  Competent evidence concerning the nature and extent of the Veteran's lumbar spine disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the 40 percent evaluated assigned. The medical findings directly address the criteria under which the Veteran's lumbar spine disability is evaluated.  Therefore, the Board finds these records to be the most probative evidence with regard to whether an increased rating is warranted.

Finally, in deciding the claim, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (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).


ORDER

An increased rating in excess of 40 percent for service-connected post-operative residuals of spondylolisthesis and spondylosis L5 to S1 is denied. 




____________________________________________
K. MILLIKAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs