Citation Nr: 1808223 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 11-20 125 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a rating in excess of 10 percent for service-connected intervertebral disc syndrome (IVDS) prior to September 7, 2012; and a rating in excess of 20 percent after September 7, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Watson, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from January 1968 to January 1971. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut issued in August 2010. In February 2017, the Veteran submitted a signed statement to indicate he did not wish to appear before a new VLJ and that the Board should consider his claim on the established record. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In September 2012, the Veteran testified before another Veterans Law Judge (VLJ). A transcript is of record. In August 2014, the RO increased the Veteran's low back disability rating to 20 percent, effective September 7, 2012. AB v. Brown, 6 Vet. App. 35, 39 (1993). FINDINGS OF FACT 1. Prior to September 7, 2012, the Veteran's low back disability was manifested by limitation of motion; but without limitation of forward flexion to 60 degrees or less, combined range of motion of 120 degrees or less, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour; or neurologic impairment. 2. Since September 7, 2012, the Veteran's low back disability has been manifested by limitation of motion without ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine 30 degrees or less or neurologic impairment. CONCLUSIONS OF LAW 1. Prior to September 7, 2012, the criteria for a rating in excess of 10 percent for a low back disability were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2017). 2. Since September 7, 2012, the criteria for a rating in excess of 20 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5242 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). I. Increased Ratings Disability ratings are determined by applying criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4. 38 U.S.C. § 1155. The percentage ratings it contains represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate DCs identify various disabilities. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings may be assigned when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim is denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Id. § 4.7. Otherwise, the lower rating will be assigned. Id. After reviewing the evidence, the Board finds that additional staged ratings are not warranted because the Veteran's disability did not materially change during the periods on appeal. The Board also finds nothing in the record which would lead it to conclude that the current evidence is not adequate for rating purposes. 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42; Schafrath v. Derwinski, 1 Vet App. 589 (1991). II. Low Back Disability Disabilities of the spine are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a , DCs 5235-5242. The Veteran's low back disability is rated currently under DC 5242, which pertains to degenerative arthritis of the spine, even though his claim is to increase his service-connected IVDS. The Veteran's most recent April 2017 VA examination identifies two diagnoses of 1) IVDS, which would be rated under DC 5243 and 2) lumbar spine degenerative arthritis (DDD), which would be rated under DC 5242. His file shows his low back disability as service-connected IVDS through a 1972 rating decision. There are no other potentially applicable DCs by which to consider the Veteran's low back disability. There being no evidence of incapacitating episodes relating to IVDS, the Board has evaluated the low back disability under the General Rating Formula, which applies to both DC 5242 and DC 5243. According to the General Rating Formula, a 20 percent rating is warranted when 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; or when there are muscle spasms 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 rating is warranted when there is evidence of unfavorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine 30 degrees or less. Any associated objective neurologic abnormalities, such as lower extremity radiculopathy, are evaluated separately under an appropriate DC. 38 C.F.R. § 4.71a, General Formula, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is 0 to 30 degrees; left and right lateral flexion and rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided are the maximum that can be used to calculate the combined range of motion. 38 C.F.R. § 4.71a , General Formula, Note 2. In a December 1972 rating decision, VA initially awarded the Veteran a 10 percent rating for his low back disability and identified it as IVDS. In May 2010, the Veteran requested VA to increase his rating. In August 2010, the RO denied an increase in a rating decision. In August 2014, the RO granted a 20 percent rating, effective September 7, 2012, for the low back disability. The 20 percent rating has since been in effect. i. Rating Prior to September 7, 2012 The July 2010 VA examination shows that prior to September 7, 2012, forward flexion was limited to, at worst, 80 degrees, and the combined range of motion of 225 degrees. There was no evidence of muscle spasm, weakness or tenderness, or more than mild guarding severe enough to result an abnormal gait or abnormal spinal contour, and no evidence of ankylosis. Consideration of functional loss or impairment does not lead to a higher rating. 38 C.F.R. §§ 4.40, 4.45, 4.59; see Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011); Deluca v. Brown, 8 Vet. App. 202, 204-06 (1995). Although remanded to include nerve conduction studies and EMG testing, the July 2010 VA examination accounted for the Veteran's symptoms, such as range of motion. He was able to perform repetitive testing, which revealed no pain, but rather tightness, during testing and no additional limitation of motion due to pain, incoordination, weakness or fatigability. However, the Veteran reported pain in his low back that prevented him from walking when he had pain, and noted these flare-ups occurred monthly. The frequency and severity of these reported limitations did not rise to the level needed for a 20 percent rating. The ranges of motion the July 2010 examination noted are far greater than needed for a 20 percent rating for limitation of flexion and combined range of motion. Other medical records do not show that the Veteran meets the required criteria for a higher rating prior to September 7, 2012. The Board recognizes that the Veteran believes his pain, stiffness, and aching warrant a higher rating, and understands that his low back disability has negatively impacted his quality of life; however, his current disability rating already accounts for pain and stiffness. See 38 C.F.R. § 4.71a, DC 5242 (explaining that the General Formula ratings apply "[w]ith or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine..."). Although the Veteran reported using a cane and ability to walk about twenty minutes before low back pain would onset, without more measurable symptoms or difficulties associated with the low back disability, the weight of the evidence does not demonstrate that a rating in excess of 10 percent prior to September 7, 2012 is warranted. ii. Rating Since September 7, 2012 Since September 7, 2012, the Veteran's low back disability has been rated as 20 percent disabling. To receive the next highest rating (40 percent), evidence must show unfavorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine limited to 30 degrees or less. VA provided the Veteran additional examinations in December 2014 and April 2017. As before, both examiners noted both diagnoses of IVDS and DDD. The December 2014 VA examination shows that after September 7, 2012, forward flexion was limited to 45 degrees, and no evidence showed ankylosis of the spine, which is necessary otherwise to increase the rating to 40 percent. The Veteran reported tenderness, and the examiner noted that the examination supports the Veteran's statements of functional loss. There was evidence of pain with weight bearing and some weakness or fatigability significantly limited functional ability over time. The Veteran also reported daily flare-ups of moderate severity, sometimes lasting days. With regard to flare-ups, the Veteran reported cold weather and most overuse activities required rest breaks after use. Although the Veteran displayed guarding or muscle spasm, it did not result in abnormal gait or spinal contour. The Veteran reported no use of an assistive device for locomotion. The April 2017 VA examination noted forward flexion limited to 60 degrees with pain noted for all motions, including localized, moderate tenderness, though no evidence of pain on weight bearing. There was no additional loss of function or limitation of motion after repetitive testing; and no evidence of pain with weight bearing. There was no guarding or muscle spasm or ankylosis of the spine. The Veteran did not report use of any assistive devices for locomotion; and stated he did not wear a back brace, but does take aspirin or Aleve daily for pain. Other medical records do not show that the Veteran meets the required criteria for a higher rating. The Veteran reported that he has occasional flare-ups when hi is raking his lawn with pain lasting up to 30 minutes. The Board recognizes that the Veteran believes his pain, stiffness, and aching warrant a higher rating, and understands that his low back disability has negatively impacted his quality of life; however, his current disability rating already accounts for those symptoms. See 38 C.F.R. § 4.71a , DC 5242. With regard to reported flare-ups, the Veteran has reported pain on flare-ups which result in pain. The Board finds that the overall impairment resulting from his back disability would still more nearly approximate no more than a 20 percent rating. For these reasons, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent since September 7, 2012. Because the preponderance of the evidence is against the claim, the benefit of the doubt provisions are inapplicable. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 56. Accordingly, the Veteran's request for a higher rating is denied for the time period since September 7, 2012. iii. Additional consideration While the record indicates complaints of pain radiating down the right leg to the right knee area, the evidence shows them unrelated to the Veteran's back condition. The April 2017 examiner noted that the Veteran is also service-connected for his pelvic fracture, including bilateral thigh muscle cramps, which were not evaluated. The December 2014 examiner also noted there were no clinical signs of lumbar radiculopathy. The Board finds the December 2014 and April 2017 medical opinions highly probative of whether the Veteran has additionally related symptoms or pathology that would provide the basis for the assignment of a separate rating based on another DC, in addition to those for which the Veteran is now service connected. The examiners reviewed the Veteran's claims file, took into account his subjective and objective medical history, and rendered clear opinions with supporting rationales. Thus, while the Veteran is competent to report observable symptoms, including constant lower back pain or occasional flare-ups when raking his lawn or similar activities, or in cold weather, and including his September 2012 testimony that pain can stop the motion of his right leg, his lay statements are outweighed by the competent and probative objective medical testing. For these reasons, the Board finds that there are no additionally related symptoms or pathology that would provide the basis for the assignment of a separate rating based on another DC. The medical evidence does not indicate, and the Veteran does not contend, that he has been prescribed bed rest by a physician based on incapacitating episodes. Therefore, the Veteran's service-connected lumbar spine disability does not warrant an increased disability rating alternatively under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes at any time during the course of this appeal. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 20 percent for a lumbar disc disease disability after September 7, 2012. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a disability rating for a low back disability in excess of 10 percent prior to September 7, 2012, is denied. Entitlement to a disability rating for a low back disability in excess of 20 percent since September 7, 2012, is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs