Citation Nr: 1808605 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 09-06 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a disability rating in excess of 20 percent for lumbar strain from November 24, 2009. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from October 1985 to October 2005. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which granted service connection for lumbar strain with an initial 10 percent rating, effective August21, 2007. In a January 2010 rating decision, the RO awarded a 20 percent rating, effective November 24, 2009. In June 2015, the Board denied higher ratings for the lumbar strain. In February 2017, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand (Joint Motion) and vacated the Board's decision, but only with respect to the denial of a rating in excess of 20 percent from November 24, 2009. In August 2017, the Board remanded the claim for additional development consistent with the June 2015 Joint Motion. In her February 2009 VA Form 9, the Veteran requested a videoconference hearing before the Board in conjunction with her appeal. A September 2010 letter to the Veteran notified her that a video hearing was scheduled for October 2010. The Veteran failed to appear for this hearing and no good cause has been shown for her failure to appear. Consequently, her hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2017). FINDING OF FACT From November 24, 2009, the Veteran's lumbar strain has been manifested by limitation of motion to, at most, 55 degrees forward flexion, 10 degrees extension, 15 degrees bilateral lateral flexion, and 15 degrees bilateral lateral rotation. Favorable or unfavorable ankylosis of the thoracolumbar spine was not shown. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for lumbar strain have not been met from November 24, 2009. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor her representative 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). Pursuant to the Board's most recent remand in August 2017, the Veteran's VA treatment records dated from September 2017 to November 2017 have been obtained. The Veteran was also provided with VA spine and peripheral nerves examinations in November 2017. See Green v. Derwinski, 1 Vet. App. 121 (1991). The examiner discussed the history of the Veteran's spine disability, conducted clinical examinations of the Veteran, and elicited information from the Veteran concerning the functional aspects of her disability. In compliance with the Joint Motion, the examiner also addressed the functional limitations caused by pain, weakness, fatigability, incoordination, and lack of endurance. Regarding the frequency and severity of flare-ups of the spine, the Veteran did not report any. Pain was noted on examination, and the degree of loss of active and passive range of motion due to pain, and with weight bearing. See 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). As this examination included sufficient details as to the current severity of her disability, the Board concludes that this examination is adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran's claim was previously remanded by the Board in December 2012 to obtain private treatment records from Dr. P. With regard to the private treatment records, the RO sent a letter to the Veteran in January 2013 requesting that she complete and return a VA Form 21-4142, Authorization and Consent to Release Information, so that records from Dr. P. could be obtained. The letter also informed the Veteran that she may want to obtain and send VA the information herself. The Veteran did not return the signed release or submit private medical records. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that VA's duty to assist is not a one way street; if the Veteran wishes help she cannot passively wait for it in circumstances where her own actions are essential in obtaining putative evidence). More recently, the AOJ sent another letter to the Veteran in August 2017, requesting that she complete and return a VA Form 21-4142, Authorization and Consent to Release Information, for any private physicians. However, the Veteran's failure to return the signed release prevented the RO from taking any further action. Under these circumstances, the Board finds that there has been substantial compliance with its prior remands. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where a veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. Id. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran service-connected lumbar strain has been evaluated as 20 percent disabling from November 24, 2009 under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5237. Diagnostic Code 5237 refers to lumbosacral strain and it directs that this condition be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula, at 38 C.F.R. § 4.71a, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for 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 not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, 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 30 percent rating is assigned for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire (thoracolumbar and cervical) spine. 38 C.F.R. § 4.71a, General Rating Formula. These ratings are made 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. Id. The General Rating Formula also provides further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Id. Note (2) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 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. Note (4) provides that each range of motion measurement is to be rounded to the nearest five degrees. Note (6) directs to separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. At a November 2009 VA examination, the Veteran complained of intermittent pain in her low back which improved with ibuprofen. She also noted pain radiating from her lower back to the lateral aspect of her left thigh to her knee with numbness and tingling in that area. The Veteran indicated her low back disability affected her desk job and that after sitting for two to three hours she had to get up and stretch. She reported that she had to stretch her left leg to relieve her low back pain while driving and that while lying in bed she had to reposition her weight because of her low back pain. She also noted that she was previously an avid walker and that walking was now difficult because of low back pain. While lifting was not a problem for her, she indicated leaning forward caused increased back pain. She did not report any flare-ups with change of weather, but did report flare-ups with various physical activities. On physical examination, gait was normal and she did not require ambulatory assistive devices. There was tenderness to palpation over the sacroiliac joints and centrally over the lumbar spine; there was no palpable paravertebral lumbar muscle spasm. Range of motion (ROM) consisted of forward flexion to 60 degrees, extension to 15 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 15 degrees. After repetitive use, forward flexion was slightly decreased to 55 degrees and extension, right and left lateral rotation and flexion were all unchanged; combined range of motion, accounting for weakness and fatigue on repetitive use, was 140. Neurological examination found no weakness or sensory impairment in the lower extremities. Straight leg testing was negative bilaterally and reflexes were 2+ bilaterally in the knees and ankles. The diagnosis was chronic lumbar strain. At the February 2013 VA spine and neurological examinations, the Veteran reported chronic low back pain; she stated she did not take medication and relied on massages to alleviate the pain. She complained of constant, moderate pain, moderate to severe paresthesia and dysesthesias, severe numbness in her left lower extremity, and numbness and tingling in her left foot. She indicated that lifting or carrying greater than 5 pounds caused pain in her left buttocks and leg, that driving was very difficult, and that she missed approximately 10 days of work in the past year due to left hip and leg pain, numbness, and tingling; no incapacitating episodes were reported. She had pain and spasm in the lumbosacral area, gait was normal but slow and antalgic. Contour of the lumbosacral spine was also normal and she did not use any assistive devices. On active and passive range of motion testing, forward flexion was to 85 degrees, extension was to 10 degrees, right and left lateral flexion were to 10 degrees, and right and left lateral rotation were to 20 degrees; there was pain on end motion of all motions. The combined range of motion was 155 degrees. Range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance, with three repetitions. Muscle strength of the left lower extremity was slightly limited and sensation testing for light touch was decreased at the left foot, toes, ankle, and leg. The examiner noted that review of a November 2005 electromyogram (EMG) revealed acute left S1 radiculopathy and a December 2005 MRI of her spine noted bulging L4-5 discs. The examiner indicated that the Veteran's left sciatic nerve was affected and found it resulted in moderate incomplete paralysis. The examiner diagnosed a lumbosacral strain, bulging discs at L4-5, and left lumbar radiculopathy at S1. At a November 2017 VA examination, the Veteran complained of exertional back pains with associated radiation down the left leg. She had epidural blocks without pain relief and used Lidocaine patches in 2017. Back pain was increased with walking more than short distances or standing more than 10 minutes. She could not do house work or yard work, or work at a job requiring even mild exertional activities due to increased back and left lower extremity pain. She had moderately severe burning left lower extremity pain with numbness and tingling in the left foot. The Veteran did not report flare-ups or any functional impairment of the thoracolumbar spine. On physical examination, forward flexion was to 55 degrees, extension was to 15 degrees, right and left lateral flexion were to 15 degrees, and right and left lateral rotation were to 15 degrees; the combined range of motion was 130 degrees. Range of motion itself did not contribute to a functional loss, but pain noted on examination and lack of endurance caused functional loss. There was evidence of pain with weight bearing and tenderness to palpation of the lower back and the paraspinal muscles. The Veteran was able to perform repetitive use testing and all ROMs remained unchanged after three repetitions. The examiner indicated that the passive and active range of motion was assessed and recorded three times using a goniometer. The examiner noted that the Veteran was examined immediately after repetitive use over time, and pain, weakness, fatigability or incoordination did not significantly limited functional ability with repeated used over a period of time. The examiner also stated there was no evidence that pain, weakness, fatigability and incoordination caused limitation of the functional ability during flare-ups or following repeated passive and active use of the lumbar spine over a period of time. There was no pain or change in passive ROM of the lumbar spine in the supine position or in the upright weight bearing position. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. Muscle strength of the left lower extremity was slightly limited with no muscle atrophy. Reflex was absent at the left ankle. Sensation testing for light touch was decreased at the left thigh/knee, lower leg/ankle, and foot/toes. The examiner indicated that the Veteran's left sciatic nerve was affected and found it resulted in moderate incomplete paralysis. The Veteran did not have any other neurological abnormalities related to a back condition, such as bowel or bladder problems or pathologic reflexes. There was no ankylosis of the spine and the Veteran did not have intervertebral disc syndrome (IVDS) and episodes requiring bed rest. X-ray of the spine revealed fairly minimal degenerative changes and borderline retrolisthesis, L5-S1. Regarding the back disability's impact on the Veteran's ability to work, the examiner noted that the Veteran could walk one block on level ground and stand for 10 minutes. She could not lift more than 10 pounds with the right arm and it was hard to do overhead work. After consideration of the pertinent evidence of record, the Board concludes that a disability rating greater than 20 percent is not warranted for the Veteran's lumbar spine disability. A review of the record shows that during the rating period on appeal, the Veteran's lumbar strain has been manifested by a functional loss that more closely resembled forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; and the combined range of motion of the thoracolumbar spine not greater than120 degrees. This level of impairment more closely corresponds to the criteria warranting a 20 percent rating. Here, the Board finds that there is no indication of forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, to warrant a rating in excess of 20 percent. See 38 C.F.R. § 4.71a, General Rating Formula (2017). Regarding the criteria for orthopedic manifestations under the General Rating Formula, considering pain and functional loss due to pain, weakness, fatigue, and lack of endurance, the Veteran's forward flexion was at most limited to 55 degrees. Specifically, the Veteran was found to have forward flexion to 55 degrees at the November 2009 VA examination. She was able to forward flex his back to 85 degrees during the February 2013 VA examination and to 55 degrees during the November 2017 VA examination. The next higher 40 percent rating requires showing of forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Ankylosis is the "immobility and consolidation of a joint due to disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). Despite its pronounced symptomatology, the Veteran's thoracolumbar spine retained some range of motion, with forward flexion greater than 30 degrees and no ankylosis of the thoracolumbar spine was shown. In making this determination, the Board considered any functional loss caused due to flare-ups of pain, weakness, fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). Concerning this, the November 2009 VA examiner indicated the ROMs obtained accounted for weakness and fatigue on repetitive use. The February 2013 VA examiner noted that the Veteran's ROMs were not additionally limited by pain, fatigue, weakness, or lack of endurance, with three repetitions, and pain was shown on end motion of all ROMs; it was further noted there was no additional limitation due to pain, fatigue, weakness, or lack of endurance after three repetitions. Finally, the November 2017 VA examination stated that the Veteran did not report any flare-ups and that there was no evidence that pain, weakness, fatigue, and incoordination caused limitation of the functional ability during flare-ups or following repeated passive and active use of the lumbar spine over a period of time. The examiner indicated that both passive and active range of motion due to pain, and with and without weight bearing, was measured three times. See Correia v. McDonald, 28 Vet. App. 158 (2016). As to the functional aspect of her back disability, the Veteran has reported pain with walking more than short distances or standing over 10 minutes, and limited ability to perform exertional activities, such as lifting heavy objects. However, pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain indeed must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. However, as discussed above, the evidence of record does not show functional limitation greater than those noted on the VA examinations is caused due to pain, weakness, fatigue, lack of endurance, or incoordination, during flare-ups or on repetitive use. Accordingly, a disability rating greater than 20 percent is not warranted on this basis. Consideration has been given to an increased rating for the Veteran's lumbar spine disability under other potentially applicable diagnostic codes. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1995). Spine conditions may also be rated under Diagnostic Code 5243 for intervertebral disc syndrome (IVDS). The criteria for IVDS rates the disability according to the number of "incapacitating episodes" suffered per year. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). 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. Id. at Note (1). However, the November 2017 VA examination specifically indicates that the Veteran's lumbar spine disability is not manifested by IDVS requiring bed rest. See 38 C.F.R. § 4.71a, General Rating Formula, Diagnostic Code 5243. The Board has also considered whether a higher rating is warranted for any neurological component of the Veteran's lumbar strain during the period on appeal. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). In this case, a March 2013 rating decision granted a separate rating for the Veteran's left lower extremity radiculopathy as a neurological manifestation associated with her service-connected lumbar strain, from November 24, 2009, with a 20 percent rating for moderate incomplete paralysis. Id.; 38 U.S.C.A. § 4.124a, Diagnostic Code 8520 (2017); see also 38 C.F.R. § 3.310(a) (2017). The Veteran did not perfect an appeal with respect to this issue, and therefore, that decision is final and is not currently before the Board. 38 U.S.C. § 7105 (2012). Aside from left lower extremity radiculopathy, the Veteran did not report and there is no objective evidence of any additional neurological impairment attributable to the Veteran's lumbar strain. During the entire period on appeal, the Veteran has not reported, and there is no objective evidence of, bowel or bladder impairment or any other neurological abnormalities. If an exceptional case arises where a rating based on the disability rating schedule is found to be inadequate, consideration of an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1) (2017). However, an extraschedular analysis is not required in every case. When extraschedular consideration is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted." Yancy v. McDonald, 27 Vet. App. 484, 494 (2016); see also Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances to raise the extraschedular issue). Here, neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. As the preponderance of the evidence is against the claim for an increased rating, there is no doubt to be resolved, and a rating greater than 20 percent for the Veteran's lumbar strain is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to a disability rating in excess of 20 percent for lumbar strain from November 24, 2009 is denied. ____________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs