Citation Nr: 1809019 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 10-27 298A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased rating for disc space narrowing at the L4-S1 levels with scoliosis, evaluated as 20 percent disabling prior to May 26, 2009. 2. Entitlement to an increased rating for disc space narrowing at the L4-S1 levels with scoliosis, evaluated as 40 percent disabling since May 26, 2009. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul Bametzreider, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1972 to April 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In October 2013 and August 2016 the Board remanded the issues for further evidentiary development. The case has now been returned to the Board for further appellate action. The Veteran testified in July 2011 before the undersigned. A transcript of the hearing was created and is associated with the claims file. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The medical evidence of record preponderates against finding that disc space narrowing at the L4-S1 levels with scoliosis was manifested by either flexion limited to 30 degrees or less, or by favorable ankylosis of the entire thoracolumbar spine in the year prior to May 26, 2009. 2. The Veteran's disc space narrowing at the L4-S1 levels with scoliosis has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine since May 26, 2009. CONCLUSIONS OF LAW 1. The criteria for e to entitlement to a rating in excess of 20 percent for disc space narrowing at the L4-S1 levels with scoliosis prior to May 26, 2009 were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2017). 2. The criteria for entitlement to a rating greater than 40 percent for disc space narrowing at the L4-S1 levels with scoliosis since May 26, 2009 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). The Veteran contends that disc space narrowing at the L4-S1 levels with scoliosis warrants a rating higher than 40 percent since May 26, 2009, and in excess of 20 percent prior to May 26, 2009. The Veteran was first granted service connection for a low back disorder in April 2000, effective April 1999. He submitted a claim for increased rating on May 26, 2009. In July 2009, a 40 percent rating was assigned effective May 26, 2009 and the Veteran appealed from that decision. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Id. at 594. However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention 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. The appellant's disc space narrowing at the L4-S1 levels with scoliosis is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. That Code provides that the disorder is to be rated under the General Rating Formula for Diseases and Injuries of the Spine. Those criteria apply with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under Diagnostic Code 5237 a 20 percent rating is warranted when thoracolumbar forward flexion is greater than 30 degrees but not greater than 60 degrees; or, when a combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. 4.71a. A 40 percent evaluation is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. A 50 percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. Id. Note 5 to the general rating formula clarifies that unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension, and the ankylosis results in more 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. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243. At his July 2011 hearing, the Veteran stated that he had difficulty picking things up off the ground. He stated that he had not required a walker, but always wore a back brace. He reported that he had to sit down after walking approximately 75 yards. The Veteran reported that his pain was constant, though sometimes worse than at other times, and was worsened by physical therapy. In June 2009 the Veteran underwent a VA examination to consider the nature and severity of his low back disability. The examiner noted 25 degrees of forward flexion, 20 degrees of extension, bilateral flexion to 15 degrees, right rotation to 5 degrees, and left rotation to 15 degrees. The examiner noted pain in all ranges of motion except extension. There was no diminution of motion on repetitive testing, and the examiner noted "no DeLuca criteria" (weakness, fatigability, or incoordination). See DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). The examiner stated that the Veteran obtained relief from use of a lumbar corset and medication. Flare-ups consisted of severe, sharp pain that was typically gone in 10 to 15 minutes, resulting from sudden movement. The examiner noted that the Veteran had an inability to walk more than 75 yards or stand more than 45 minutes. However, the Veteran could sit for "rather prolonged periods." At an October 2013 VA spine examination the Veteran demonstrated 45 degrees of forward flexion, 10 degrees of extension, right lateral flexion to 10 degrees, left lateral flexion to 5 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 10 degrees. The examiner noted pain at zero degrees in every arc of motion. The examiner remarked that pain, weakness, fatigability or incoordination could produce as much as an additional loss of 5-10 degrees in limitation of motion. No additional limitation of motion after repetitive testing was reported. Functional loss was noted to include less movement than normal, pain on movement, and interference with sitting, standing and weight-bearing. Lifting was limited to no more than 10 pounds. The examiner noted that the Veteran wore a brace all the time, and that without the brace he felt increased pain. The examiner noted that the Veteran received steroid injections every three months for low back and radicular pain. Flare-ups were noted to occur if the Veteran attempted to mow the entire yard in one day with his riding mower. The examiner remarked that pain, weakness, fatigability or incoordination could significantly limit functional ability during flare-ups or when the joint was used repeatedly over a period of time. The most recent VA examination was provided in March 2017. There the Veteran demonstrated 60 degrees of lumbar forward flexion, 15 degrees of extension, bilateral lateral flexion to 10 degrees, and bilateral lateral rotation to 15 degrees. There was no reported change in range of passive motion and there was no additional functional loss after three repetitions. The examiner stated that pain was notable in all ranges of motion, and that the pain was productive of functional limitation. The examiner noted that the Veteran exhibited pain with weight bearing. Regarding flare-ups, the examiner found that the Veteran's report of flare-ups were acute exacerbations of pain occurring once every few months, lasting a few days. It was noted that in October 2016 the appellant had an episode which lasted close to three weeks. The examiner reported that the Veteran had to quit his job in March 2014 due to increased pain, noting he could not preform prolonged standing, walking, lifting, pushing or pulling. With regard to the previous VA spine examinations, the examiner stated "I cannot comment on the results of their examinations and their review of symptoms at the time, however I reviewed the records they used and have nothing to add to their conclusions." The examiner noted that the subjective symptoms reported by the Veteran at the March 2017 examination matched those reported at the July 2011 hearing. Prior to May 26, 2009 the Veteran's disc space narrowing at the L4-S1 levels with scoliosis was rated 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Veteran's claim for increase was received by VA on May 26, 2009 and the RO accordingly assigned an effective date for the grant of increase on the date of the claim. The Veteran has not argued, and the record does not otherwise support, that he submitted a claim for increased rating for disc space narrowing at the L4-S1 levels with scoliosis prior to May 26, 2009. As such, the issue before the Board is whether the increase in disability is factually ascertainable within one year prior to the receipt of the claim for an increased rating. In this regard, the Board reiterates that under Diagnostic Code 5237, a 40 percent rating requires demonstration of either forward thoracolumbar flexion of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. Significantly, the evidence preponderates against finding that either criteria was factually ascertainable within the year prior to May 26, 2009. Medical records pertinent to the one-year period prior to that date do not reveal any range of motion measurements for the thoracolumbar spine. January 2009 VA treatment records note complaints of back pain, and a May 5, 2009 VA treatment record noted that the Veteran's low back pain had "not changed," and was managed with a brace and with medication. In light of the absence of the clinical findings for a 40 percent rating prior to May 26, 2009, the claim must be denied. Turning to the period since May 26, 2009, based on the foregoing evidence, the Board finds that the Veteran's disc space narrowing at the L4-S1 levels with scoliosis has not approximated the criteria for a rating higher than 40 percent since May 26, 2009. No medical evidence of record suggests that the Veteran has suffered from unfavorable ankylosis of the entire thoracolumbar spine. Indeed, the March 2017 VA examiner expressly denied any finding of ankylosis. The Board has considered the Veteran's reports of pain, weakness and fatigability, to include during flare-ups, in accordance with the holding in DeLuca, however, because the maximum schedular evaluation based on range of motion of 40 percent has been granted for the lumbar spine disability, the DeLuca considerations are inapplicable to this issue. Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable). Similarly, given that the Veteran is in receipt of the maximum schedular rating available based on limitation of motion, any deficiencies in the VA examinations of record concerning range of motion testing described in the final sentence of 38 C.F.R. § 4.59, or assessment of additional functional impairment on flare-up is rendered harmless. See Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). As such, additional development regarding the low back would not result in any further benefit to the Veteran and would cause an unnecessary delay in the adjudication of the case. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board observes that the March 2017 VA examiner declined to provide a retrospective opinion regarding the severity of the Veteran's low back disability. Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). The June 2009 and October 2013 VA examinations were unambiguous in their range of motion reports. While the October 2013 VA examiner noted pain at zero degrees in all ranges of motion, that examiner also expressly opined that pain would prohibit 5-10 additional degrees of range of motion. That examiner did not indicate that any reported symptoms would more nearly approximate unfavorable ankylosis. As there is ample medical evidence concerning the period discussed herein, any further remand for a retrospective opinion would be unnecessary. Sabonis, 6 Vet. App. at 430. With regard to the Veteran's lay testimony of record, the Board observes that he has not asserted that his symptoms approximate unfavorable ankylosis. Moreover, while the Veteran is competent to describe certain observed and experienced symptomatology such as pain, when made in support of a claim of entitlement to a higher rating, Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The claimant's lay statements are not entitled to more weight than the objective findings rendered by trained medical professionals. See 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). While the Board has considered the Veteran's contentions, he is not competent to establish, on the basis of his own lay assertions, that his disability warrants a specific rating. Finally, the Board notes that the Veteran does not have, and is not service connected for an intervertebral disc syndrome, hence consideration of 38 C.F.R. § 4.71a, Diagnostic Code 5243 is not in order. Based on the foregoing, the evidence preponderates against the claims, and they are denied. ORDER Entitlement to an increased rating for disc space narrowing at the L4-S1 levels with scoliosis, evaluated as 20 percent disabling prior to May 26, 2009 is denied. Entitlement to an increased rating for disc space narrowing at the L4-S1 levels with scoliosis, evaluated as 40 percent disabling since May 26, 2009 is denied. REMAND The March 2017 VA examiner noted that the Veteran had recently left his job due to back pain. The Board notes, however, that the appellant is also service connected for bilateral lower extremity varicose veins, right lower extremity radiculopathy, tonsillectomy residuals, and for residuals of burns to the arms. All of these service connected disorders must be considered in addressing the appellant's entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. When entitlement to a total disability rating based on individual unemployability is raised in connection with an increased rating claim for one or more of those service-connected disabilities, the Board has jurisdiction over the issue because it is part of the claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the claim is included in the current appeal, and remand for development of the issue is appropriate. Id. Accordingly, the case is REMANDED for the following action: 1. The AOJ must develop and adjudicate the issue of entitlement to a total disability rating based on individual unemployability. In so doing, the AOJ must notify the appellant and his representative of VA's duties to notify and assist in the development of that claim. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The AOJ should then undertake any additional development deemed appropriate pertaining to this claim. 2. Upon completion of any additional development deemed appropriate, the AOJ should adjudicate this issue. If the benefit sought remains denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs