Citation Nr: 1808615 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-22 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for service-connected lumbar spine osteoarthritis. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD E. F. Brandau, Associate Counsel INTRODUCTION The Veteran has active duty service in the United States Air Force from June 1973 to March 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office. The Board previously remanded this issue in June 2017. FINDING OF FACT Throughout the duration of the appeal, the Veteran's low back disability manifested by pain and limited motion, but with forward flexion of the thoracolumbar spine greater than 60 degrees and combined range of motion greater than 120 degrees. CONCLUSION OF LAW Throughout the duration of the appeal, the criteria for an initial disability rating in excess of 10 percent for low back disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his 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). Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2017); where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2017); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2017). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2017); see also 38 C.F.R. §§ 4.45, 4.59 (2017). 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). Lumbar spine disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. A 10 percent rating requires forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 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 requires forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating requires forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent rating requires forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. The notes applicable to the General Formula are as follows: Note (1): Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension 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 range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Intervertebral disc syndrome (IVDS) is rated using the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Evaluations range from 10 to 60 percent based on the number of incapacitating episodes (period of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician). 38 C.F.R. § 4.71a, Diagnostic Code 5243. A 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Id. In this case, the Veteran has been in receipt of a 10 percent disability rating throughout the duration of the appeal. Therefore, to receive a higher disability rating the evidence must show ankylosis of the thoracolumbar spine; forward flexion of the thoracolumbar spine to 60 degrees or less; muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or at least 2 weeks of incapacitating episodes in a 12 month period. In August 2010 the Veteran underwent VA examination in connection with his claim. At the time he reported having constant low back pain since separation from service, and that the pain was worse with prolonged positions. He did not experience flare-ups of the condition or incapacitating episodes of spine disease. He denied having any incontinence, numbness, or paresthesia. During the physical examination the Veteran's posture was normal, and he exhibited a slow antalgic gait. Scoliosis was present. His spine was painful and tender, but there was no evidence of muscular atrophy, guarding, or muscle spasm. The examiner specifically noted that muscle spasm, localized tenderness, and guarding were not present to the degree that such would be responsible for abnormal gait or abnormal spinal contour. During range of motion testing the Veteran had forward flexion to 70 degrees, extension to 10 degrees, and bilateral flexion to 20 degrees with bilateral rotation to 30 degrees. There was no pain in the range of motion testing and no change in the range of motion after repetitions. While his reflexes were hypoactive, his strength was normal in the extremities. At the time of the examination the Veteran asserted that he was working as a bus driver, and the VA examiner indicated that this spinal disability caused him limitations on doing sports, heavy exercise, and long distance traveling. In July 2012 the Veteran returned to VA for back pain, and at the time he was diagnosed with a lumbar strain and was given medication. Two years later the Veteran returned for treatment at VA and on physical examination the Veteran had spinal tenderness with muscle spasms and a decreased range of motion (the specific limitations in range of motion were not noted). More recently in February 2017 the Veteran sought treatment at VA and he was noted to have tenderness in the lumbar spine with muscle spasms and a decreased range of motion. It was noted his chronic low back pain was not severe with a normal physical examination and function. The Veteran was scheduled for a VA examination in October 2017 to determine the current severity of his service-connected spinal disability, pursuant to the Board's June 2017 remand directive. However, the Veteran did not attend the examination or provide good cause as to why he did not attend. Under the laws and regulations, the Veteran has a responsibility of attending a VA examination to help establish entitlement to a claim. 38 C.F.R. §§ 3.326, 3.327 (2017). The provisions of 38 C.F.R. § 3.655(b) state that when a claimant does not report for an examination in conjunction with a reopened claim for a benefit which was previously disallowed, or for a claim for an increased rating of a service connected disability, the claim shall be denied unless good cause is established as to why the claimant failed to appear. Good cause includes, but is not limited to, the illness or hospitalization of the claimant, or the death of an immediate family member. 38 C.F.R. § 3.655(a) (2017). The Veteran did not appear for the examination scheduled in October 2017 to address the extent of his lumbar spine disability. The Veteran has provided no reason for not reporting for the examination and has not requested that an additional examination be scheduled. The Board also notes that therefore the decision must be made on the evidence available. Based on the sum of the evidence, the Board determines that a disability rating in excess of 10 percent is not warranted. Treatment notes are consistent with this finding. The Veteran's treatment was mainly limited to medication management, and he had few physical examinations. The August 2010 VA examination revealed forward flexion greater than 60 degrees with no flare-ups of the condition or ankylosis. While the Veteran had an abnormal gait and abnormal spinal contour at the examination, the examiner determined this was not because of guarding or muscle spasm. Although later treatment records note muscle spasms on a few of the physical examinations, there is no evidence that this has affected his gait or spinal contour. As such, a higher rating is not warranted when considering the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. There is no indication that the Veteran has IVDS or that he was prescribed bedrest by a physician for IVDS during this period. As such, a higher rating is not warranted for IVDS based on Diagnostic Code 5243 (2017). 38 C.F.R. § 4.71a. On examination in August 2010 the Veteran denied having any numbness, paresthesia, or bladder difficulties as a result of his spinal disability, and he did not suggest anything to the contrary during the remainder of the appeal. This evidence is against a finding that the Veteran had separately ratable neurological manifestations of the low back disability. The evidence does not show radiculopathy or any other diagnosed neurological disability during this period. In making this determination the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for the low back disability. Therefore, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 4.3, 4.7, Diagnostic Codes 5235-5242. 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, 369-370 (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). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial disability rating in excess of 10 percent for service-connected lumbar spine disability is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs