Citation Nr: 1825347	
Decision Date: 04/27/18    Archive Date: 05/07/18

DOCKET NO.  13-31 452	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1.  Entitlement to an evaluation in excess of 10 percent from November 22, 2011 to September 22, 2014, and an evaluation in excess of 20 percent since September 23, 2014, for chronic low back pain/sprain (hereinafter a "low back disability").  

2.  Entitlement to a compensable evaluation for stress fracture of left 5th metatarsal (hereinafter a "left foot disability").


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

Journet Shaw, Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from October 1994 to March 1997.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.  Jurisdiction of the case is now before the RO in Seattle, Washington.

In the August 2012 rating decision, the RO granted a 10 percent evaluation for chronic low back pain/sprain, effective November 22, 2011; denied a compensable evaluation for stress fracture of left 5th metatarsal; and found no new and material evidence had been received to reopen a claim for service connection for left knee effusion with retropatellar syndrome.  The Veteran appealed for higher evaluations for his service-connected low back disability and left foot disability and service connection for left knee effusion with retropatellar syndrome.  

During the pendency of the appeal, the RO issued a November 2014 rating decision granting service connection for left knee effusion with retropatellar syndrome and assigned a 10 percent evaluation, effective June 2, 2011; and granted a 20 percent evaluation for a low back disability, effective September 23, 2014.  The Veteran continued to appeal for a higher evaluation for his low back disability.  AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claimant is presumed to be seeking the maximum rating).  Additionally, because the Veteran was granted service connection for his left knee effusion with retropatellar syndrome, an issue that had been on appeal, the Board finds that it has been resolved by a full grant of benefits.  The Veteran did not file a notice of disagreement with this decision, and the Board finds that the issue is no longer part of the current appeal.  See 38 C.F.R. § 19.26(d) (2017).  

In May 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  Unfortunately, the Board was unable to produce a transcript of the proceeding because of difficulties with the recording system.  VA correspondence was sent to the Veteran in July 2016 and November 2017 informing the Veteran that a transcript of the hearing could not be prepared due to technical difficulties and provided the Veteran an opportunity to request another hearing. The Veteran did not respond to the July 2016 and November 2017 correspondence.  


FINDINGS OF FACT

1.  From November 22, 2011 to September 22, 2014, the Veteran's low back disability has been manifested by subjective evidence of chronic pain with flare-ups and flexion at no less than 80 degrees, but no objective evidence of functional loss.

2.  Resolving all reasonable doubt in favor of the Veteran, from September 23, 2014, the Veteran's low back disability has been manifested by chronic pain and flexion of no less than 40 degrees with functional loss during flare-ups or repetitive use.  

3.  Throughout the appeal period, the Veteran's left foot disability manifests symptoms that are characterized as no more than mild.  


CONCLUSIONS OF LAW

1.  From November 22, 2011 to September 22, 2014, the criteria for an evaluation in excess of 10 percent for a low back disability have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017).

2.  From September 23, 2014, the criteria for a 40 percent evaluation, but no higher, for a low back disability have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017).

3.  The criteria for a compensable evaluation for a left foot disability have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision.  See 38 U.S.C. § 7104 (2012); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each piece of evidence.  Id.  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  It should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Id.   

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Id.  

Duties to Notify and Assist

Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012);  38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017).

Neither the Veteran nor his/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).

Higher Evaluation

	Laws and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating 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.A. § 1155; 38 C.F.R. § 4.1. 

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.  

The veteran's entire history is to be considered when making disability evaluations.  See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  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, the Board acknowledges that 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, 509-510 (2007).  

It should also be noted that, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  38 C.F.R. § 4.40; DeLuca, 8 Vet. App. at 205.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  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 it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion.  Id.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  Id.  The factors involved in evaluating, and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement.  38 C.F.R. § 4.45.

The intent of the rating 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.  Painful motion is considered limited motion at the point that pain actually sets in.  See VAOPGCPREC 9-98.

Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability.  38 C.F.R. § 4.14 (2017).

	Chronic Low Back Pain/Sprain

The Veteran contends that his service-connected low back disability is worse than his current evaluation reflects.  

The Veteran's service-connected low back disability has been currently evaluated as 10 percent disabling, effective November 22, 2011, and as 20 percent disabling, effective September 23, 2014, under 38 C.F.R. § 4.71a, Diagnostic Code 5237.  

Diagnostic Code 5237 is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: 

A 10 percent evaluation is appropriate where there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal contour; or, vertebral body contour fracture with loss of 50 percent or more of the height. 

A 20 percent evaluation is appropriate where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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 40 percent evaluation is appropriate for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 

A higher 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. 

A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is zero to 30 degrees; left and right lateral flexion are zero to 30 degrees; and left and right lateral rotation are zero to 30 degrees.  See General Rating Formula for Diseases and Injuries of the Spine, Note 2.

Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.  See General Rating Formula for Diseases and Injuries of the Spine, Note 1. 

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 neurological symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  See General Rating Formula for Diseases and Injuries of the Spine, Note 5.

In December 2011, the Veteran underwent a VA spine examination.  The Veteran reported experiencing chronic, mild pain, which was exacerbated by physical activity and lasted for 15 minutes.  He also had associated symptoms of stiffness, spasms, and decreased motion.  A report of flare-ups with getting out of bed and walking was noted, but no limitation with ambulation.  No assistive devices were used.  Upon objective evaluation, the VA examiner found that the Veteran had a normal posture and gait.  No tenderness, guarding or muscle spasm was noted.  Muscle strength, motor function, sensory, and reflex examination results were normal.  No muscle atrophy was shown.  Range of motion testing of the thoracolumbar spine revealed flexion at 80 degrees, extension at 30 degrees, right and lateral flexion at 30 degrees, and right and left lateral rotation at 30 degrees.  No painful motion was elicited throughout his range of motion.  There was no additional limitation in range of motion following repetitive use testing.  No functional loss was found.  Straight leg raising test was negative bilaterally.  No signs or symptoms due radiculopathy were identified.  There were no other neurologic abnormalities.  The Veteran did not have intervertebral disc syndrome (IVDS).  A lumbar spine x-ray was within normal limits.  The VA examiner found that his diagnosis of lumbar strain remained unchanged, and that the Veteran's condition was in remission.  

In September 2014, the Veteran was afforded another VA spine examination.  The Veteran reported having flare-ups, which caused limitations in his ability to walk, stand, and lift.  No assistive devices were used.  Upon objective evaluation, the VA examiner found that the Veteran had a normal posture and gait, but tenderness in the lower lumbar para vertebral muscles was elicited.  No guarding or muscle spasm was noted.  Muscle strength, sensory and reflex examinations results were normal.  Range of motion testing of the thoracolumbar spine revealed flexion at 40 degrees, extension at 15 degrees, right and left lateral flexion at 30 degrees, and right and left lateral rotation at 20 degrees.  Painful motion was elicited throughout his range of motion.  No additional limitation in range of motion following repetitive use testing was found.  The VA examiner found that the Veteran had functional loss exhibited by less movement than normal, pain on movement, and interference with sitting, standing, and/or weight bearing.  There were contributing factors of pain, weakness, fatigability, and incoordination and additional limitation of functional ability during flare-ups or repeated used over time described as limited walking and standing during flare-ups due to pain.  Straight leg raising test was negative bilaterally.  There were no signs or symptoms of radiculopathy.  Other neurologic abnormalities were not found.  No IVDS was noted.  Diagnostic testing did not document any arthritis.  The VA examiner found that the diagnosis of low back sprain with pain remained unchanged, and the Veteran's condition was active.  

Based on a careful review of the subjective and clinical evidence, the Board finds that from November 22, 2011 to September 22, 2014, the Veteran's service-connected low back disability does not warrant a higher 20 percent evaluation under the General rating Formula for Diseases and Injuries of the Spine.  In other words, during this appeal period, the evidence does not demonstrate that the Veteran's low back disability manifests flexion greater than 30 degrees, but not greater than 60 degrees, or a combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result to in an abnormal gait or abnormal spinal contour.  Rather, during this appeal period, the evidence shows that the Veteran's flexion was no less than 80 degrees, his combined range of motion was 230 degrees, and no muscle spasms or guarding was found.  As no functional loss during repetitive use or flare-ups was found, there is no other basis upon which to consider awarding a higher 20 percent evaluation.  See Deluca, 8 Vet. App. at 206; see also 38 C.F.R. §§ 4.40, 4.45.  Therefore, under the General Rating Formula for Diseases and Injuries of the Spine, from November 22, 2011 to September 22, 2014, the Veteran's service-connected low back disability is no more than 10 percent disabling.  

However, resolving all reasonable doubt in favor of the Veteran, from September 23, 2014, the Veteran's service-connected low back disability warrants a higher 40 percent evaluation based on functional loss due to flare-ups or repetitive use.  See Deluca, 8 Vet. App. at 206; see also 38 C.F.R. §§ 4.40, 4.45.  During his September 2014 VA examination, the Veteran's low back disability manifested flexion at 40 degrees with pain.  At that same examination, the VA examiner determined that the Veteran experienced additional limitation of functional ability during flare-ups or repeated use over time.  Based on these findings, the Board views the evidence as most favorably equating the Veteran's symptomatology during this appeal period with a 40 percent evaluation based on his functional loss during flare-ups or repetitive use.  Therefore, from September 24, 2014, the Veteran's low back disability is 40 percent disabling.  

However, from September 23, 2014, consideration of a higher 50 percent evaluation under the General Rating Formula for Diseases and Injuries of the Spine is not warranted for the Veteran's low back disability as the evidence does not demonstrate that he manifested unfavorable ankylosis of the entire thoracolumbar spine.  Accordingly, from September 23, 2014, the Veteran's low back disability is no more than 40 percent disabling.  

In summary, from November 22, 2011 to September 22, 2014, the preponderance of the evidence weighs against finding a higher than 10 percent evaluation for the Veteran's low back disability is warranted.  Therefore, from November 22, 2011 to September 22, 2014, the benefit-of-the-doubt rule does not apply, and the higher evaluation claim must be denied.  However, resolving all reasonable doubt in favor of the Veteran, from September 23, 2014, a higher 40 percent evaluation, but no higher, for the Veteran's low back disability is warranted.  Therefore, from September 23, 2014, the Veteran's higher evaluation claim must be granted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

	Stress Fracture of Left 5th Metatarsal 

The Veteran contends that his service-connected left foot disability is worse than his current evaluation reflects.  

The Veteran's stress fracture of left 5th metatarsal has been currently evaluated as noncompensable, effective March 27, 1997, and rated analogously under 38 C.F.R. § 4.71a, Diagnostic Code 5284, for other foot injuries.  See 38 C.F.R. § 4.20 (2017).  

Diagnostic Code 5284 provides for a 10 percent rating for a moderate condition, 20 percent for moderately severe, and 30 percent for a severe condition.  38 C.F.R. § 4.71a.  The rating schedule does not define the terms "moderate," "moderately severe," and "severe" as used in this diagnostic code.  Adjudicators must evaluate all of the evidence and render a decision that is "equitable and just."  38 C.F.R. § 4.6.

VA General Counsel has determined that Diagnostic Code 5284 is a general diagnostic code under which a variety of foot injuries may be rated; that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints; and that other injuries may not affect range of motion.  Thus, General Counsel concluded that, depending on the nature of the foot injury, Diagnostic Code 5284 may involve limitation of motion.  VAOPGCPREC 9-98.

Other relevant diagnostic codes for the foot that provide for compensable evaluations are not applicable in this case.  There is no evidence that the Veteran's left foot disability manifests flatfoot (Diagnostic 5276), weak foot (Diagnostic Code 5277), claw foot (Diagnostic 5278), metatarsalia (Diagnostic Code 5279), hallux valgus (Diagnostic Code 5280), hallus rigidus (Diagnostic Code 5181), hammer toes (Diagnostic Code 5282), or malunion or nonunion of tarsal or metatarsal bones (Diagnostic 5283).

In December 2011, the Veteran underwent a VA examination.  The Veteran reported experiencing squeezing and cramping pain on the top of his foot, which occurred three times a month and lasted for one day.  While standing or walking, he had pain, weakness and stiffness.  He was able to function without medication, and he did not experience any overall functional impairment.  No assistive devices were used.  Upon objective evaluation, the VA examiner found that an examination of the Veteran's feet did not reveal any signs of abnormal weight bearing or breakdown, callosities, or any unusual shoe wear pattern.  His left foot did not elicit any painful motion, edema, disturb circulation, weakness, atrophy of the musculature, heat, redness, or instability.  Active motion in the metatarsophalangeal joint of the left great toe was observed.  No Morton's neuroma or metatarsalgia was found.  The Veteran did not have hammer toes, hallux valgus or hallux rigidus.  No claw foot or weak foot was noted.  An x-ray of the left foot showed a screw in place from old-healed 5th metatarsal fracture, but no malunion of tarsal or metatarsal bones.  The Veteran had a left foot scar that was not painful, unstable, or have a total area greater than 39 square centimeters (cm.).  The VA examiner found that the Veteran's diagnosis of stress fracture of left 5th metatarsal remained unchanged.  

In September 2014, the Veteran was afforded another VA examination.  The Veteran reported experiencing foot pain with walking long distance and flare-ups, which caused him to limp with walking long distance.  No functional loss or impairment was reported.  Upon objective evaluation, the VA examiner determined that the Veteran's left foot disability manifested persistent pain of mild severity.  His left foot condition, which showed pain on weight bearing, did not chronically compromise weight bearing.  No assistive devices were required.  Pain was elicited during the physical examination, however, it did not contribute to functional loss, and no physical limitation was reported due to his foot pain.  Pain, weakness, fatigability or incoordination did not significantly limit functional ability during flare-ups or with repeated use over time.  No other functional loss was found during flare-ups or with repeated use over time.  His left foot scar was not painful, unstable, or have a total area greater than 39 square cm.  The VA examiner determined that the Veteran's left foot disability did not impact his ability to perform any occupational task.  

Based on a careful review of the subjective and clinical evidence, throughout the relevant appeal period, the Veteran's left foot disability does not warrant a compensable evaluation under Diagnostic Code 5284.  In other words, the Veteran's left foot disability does not manifest symptoms that more closely approximate moderate symptoms.  Indeed, at no point during the appeal period does the Veteran's left foot disability manifest symptoms characterized as more than mild.  Furthermore, neither by the Veteran's own report, nor the clinical evidence, does his left foot disability exhibit any significantly debilitating symptomatology, as he does not require the use of any assistive devices, does not present symptoms that compromise weight bearing, and does not have any functional loss during flare-ups or with repeated use over time.  Accordingly, the Board finds that throughout the appeal period, a compensable evaluation under Diagnostic Code 5284 for the Veteran's left foot disability is not warranted.  

In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's claim for a compensable evaluation for his left foot disability.  Therefore, the benefit-of-the-doubt rule does not apply, and the higher evaluation claim must be denied.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

From November 22, 2011 to September 22, 2014, entitlement to an evaluation in excess of 10 percent for chronic low back pain/sprain is denied.  

From September 23, 2014, entitlement to a 40 percent evaluation for chronic low back pain/sprain is granted, subject to the laws and regulations governing the payment of monetary benefits.  

Entitlement to a compensable evaluation for stress fracture of left 5th metatarsal is denied.  




____________________________________________
JOHN Z. JONES
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs