Citation Nr: 18104016 Decision Date: 05/21/18 Archive Date: 05/20/18 DOCKET NO. 10-12 864 DATE: May 21, 2018 ORDER For the entire period on appeal, a rating in excess of 20 percent for a low back disability is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s low back disability was not manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, ankylosis or incapacitating episodes of intervertebral disc syndrome (IVDS). CONCLUSION OF LAW For the entire period on appeal, the criteria for a rating in excess of 20 percent for a low back disability are not met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes (DC) 5237-5243 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army National Guard of the United States/Nebraska Army National Guard from January 2002 to January 2008, with verified active duty from June 24 to October 18, 2002, and from August 9, 2004 to October 21, 2005, that included service in Iraq/Kuwait from September 27, 2004 to September 25, 2005. He also had periods of active and inactive duty for training (ACDUTRA and INACDUTRA), including ACDUTRA from December 30, 2002 to January 13, 2003. In October 2012, the Board denied entitlement to service connection for an acquired psychiatric disorder, sleep apnea, a disability manifested by fatigue. The Board also denied a rating in excess of 20 percent for the Veteran’s back disability. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court), and by an Order dated in January 2014, the Court set aside the Board’s October 2012 decision, and remanded the claims for further development. In August 2014, the Board remanded the Veteran’s claims of entitlement to service connection for an acquired psychiatric disorder, sleep apnea, and a disability manifested by fatigue. The Board also denied a rating in excess of 20 percent for the Veteran’s back disability. The Veteran filed a timely appeal to the Court with regard to the denial of an increased rating for his back disability, and by an Order dated in January 2016, the Court issued a Memorandum Decision that set aside the Board’s August 2014 denial of an increased rating for his back disability, and remanded the claim for further development. In September 2016, the Board remanded the Veteran’s claim for further development in accordance with the Court’s January 2016 Memorandum Decision. The Board’s review of the claims file reveals that the Agency of Original Jurisdiction (AOJ) is still taking action on the service connection claims that were remanded by the Board in its August 2014 decision for AOJ development. As such, the Board will not adjudicate those claims at this time, but they will be the subject of a subsequent Board decision, if otherwise in order. 1. Increased Rating- Legal Criteria Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Where arthritis results in painful motion of the joint, the rating criteria allow for at least the minimum compensable evaluation for the joint. 38 C.F.R. § 4.59. The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Id. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). Nonetheless, a rating higher than the minimum compensable rating is not assignable under any DC (relating to range of motion) where pain does not cause a compensable functional loss. The “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance, “as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. This is because “pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss.” Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Section 4.59 does not require objective evidence of painful motion. The regulation does not speak to the type of evidence required when assessing painful motion and therefore certainly does not, by its own terms, restrict evidence to “objective” evidence. Petitti v. McDonald, 27 Vet. App. 415, 427 (2015). If credible, lay testimony may consist of a veteran’s own statements to the extent that the statements describe symptoms capable of lay observation. 27 Vet. App. 415, 427-28 (2015) (citing Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, the Veteran’s back disability is rated under DC 5237 of the General Formula for Rating Disabilities 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, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or the 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 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 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 rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating. 2. Factual Background By way of procedural history, the record reflects that, in a November 2006 rating decision, the RO granted service connection for mechanical mid-low back strain and assigned an initial 10 percent rating under Diagnostic Code 5237. In August 2009, the RO received the Veteran’s current claim for an increased rating. The October 2009 rating decision assigned a 20 percent rating for the Veteran’s back disability and he appealed that determination. Turning to the evidence, in his August 2009 claim, the Veteran stated his back pain worsened, and indicated that, in April 2009, he was seen in the VA outpatient clinic for relief of lower back pain and told he had scoliosis. Lastly, he noted that he was taking more Ibuprofen than he had previously taken. VA treatment records dated from 2008 to 2010 show that on April 6, 2009, the Veteran was seen at the VAMC in Lincoln, and underwent a physical examination. He complained of low to mid-back pain that bothered him two to three times per week and denied any radiation down his buttocks or legs. The Veteran said his back hurt when sitting and driving. He said he drove to Las Vegas and the pain caused him to vomit. He reported that he previously saw a private chiropractor when he lived in another city. Upon clinical evaluation, the assessment included low back pain for which a referral to physical therapy was made, and the Veteran was advised to take Ibuprofen 800 milligrams several times a day as needed for low back pain. VA Physical Therapy clinic treatment notes dated in May 2009 indicate that the Veteran complained of upper back pain that started four years earlier. Thoracic scoliosis with convexity to the left was noted and his left shoulder was higher than his right. Physical examination revealed that his lumbar spine range of motion was within full limits in all ranges. The assessment was upper back strain, postural syndrome, and scoliosis. An additional May 2009 progress note indicates that the Veteran canceled his appointment and reported that he was doing better and would be out of town for a few weeks. He said he would contact his physician when he returned if he needed further attention. In a statement in support of claim dated in August 2009, the Veteran indicated that he developed scoliosis, but indicated “as for a difference in pain, it’s been fairly consistent, with the help of the physical therapy the pain has been easier to handle.” In September 2009, the Veteran underwent VA examination for his spine. He reported symptoms of pain, stiffness, and weakness every other day in his mid and lower back that was helped by medication (Ibuprofen, 800 mg. daily). He further reported flare ups, which occurred with any type of activity and lasted a few days. The VA examiner said that functional impairment occurred because the Veteran avoided some activities. The Veteran did not use assistive devices and had no falls. He denied radiculopathy or shooting pains. He noted that he occasionally took an ice pack to work with him. He further stated that he did not miss work, but avoided some activities. There were no incapacitating episodes which resulted in bedrest prescribed by a physician. Upon physical examination, range of motion of the Veteran’s lumbar spine revealed forward flexion to 60 degrees, extension to 25 degrees, and lateral flexion to 25 degrees, bilaterally, and lateral rotation to 30 degrees, bilaterally. The VA examiner reported three additional forward flexion exercises to 35 degrees each time with mild to moderate pain, moderate weakness and fatigue, but no incoordination. It was indicated that major functional impact was pain with repetitive use; however, the examiner noted that additional limitation during a flare-up could not be determined without resorting to speculation. The Veteran’s gait and posture were normal and there were no abnormal spinal curvatures and no cervical spine or thoracolumbar spine ankylosis. Lasègue’s sign was negative. The Veteran’s discomfort was located over the mid to lower thoracic and upper lumbar spines. No obvious or specific scoliosis or kyphosis was noted. Deep tendon reflexes were intact, ankle jerks were present, and pulses and sensation were intact in both lower extremities. Straight leg raising test was negative, bilaterally. There was no clinical evidence of radiculopathy. Additionally, the VA examiner said that the Veteran worked part time in a development center for youth and lost no time in the past twelve months due to his back disability, but indicated that he avoided strenuous activities. The examiner rendered a diagnosis of mechanical mid-low back strain with no significant effects on usual occupation. The VA examiner said that the Veteran’s back disability had a moderate effect on his ability to exercise and participate in sports, a mild effect on his ability to participate in recreational activities, and no effect on his ability to do chores, shop, travel or complete his activities of daily living. Later in September 2009, the Veteran underwent VA orthopedic examination regarding his claim for service connection for scoliosis as due to mechanical low back strain. It was noted that a physical therapist told the Veteran he had scoliosis, which he thought was a new diagnosis and requested evaluation. The examiner commented that the Veteran’s mechanical low back symptoms have maintained since the time of his previous examination. The Veteran denied any radiation of symptoms in the extremities. He complained of pain with soreness and stiffness in the mid-thoracic area of his back along the paraspinal musculature. There was tenderness to palpation along the paraspinal musculature. It was further noted that results of x-rays taken in 2006 did not demonstrate significant scoliosis findings. The examiner assessed mechanical low back pain. The Court found that the October 2012 Board did not err in relying on the September 2009 VA examination because the examiner explained why he could not provide an opinion without resorting to speculation with regard to the Veteran’s reported flare-ups. The Court further held, that the Board did not err in not providing the Veteran with an updated VA examination, because the Veteran never asserted that his disability worsened, and the mere passage of time is not sufficient to conclude that a new examination is needed. However, the Court stated that the Board erred in not explaining why staged ratings were not appropriate given the Veteran’s statements that he had flare-ups that “occurred with any type of activity and lasted a few days.” However, the Court, in its January 2016 Memorandum Decision vacating the August 2014 Board decision, indicated that the 2009 VA examination report did not provide sufficient information for the Board to make a determination as to staged ratings based on flare-ups. The Court indicated that either a new VA examination of the back must be obtained or the Board must explain why a new examination is not necessary. In an August 2016 letter, the Veteran’s attorney asserted that the September 2009 VA examination of the Veteran’s back is out-of-date and requested that the Veteran be provided a new VA examination. In response to the Board’s September 2016 remand, the Veteran underwent a VA examination to assess the severity of his back disability in November 2017. The examiner noted a normal thoracic spine and rendered a diagnosis of moderate facet osteoarthritis at L4-5 and L5-S1. The Veteran reported that he had no flare-ups or any functional loss or functional impairment due to his back disability. Upon examination, range of motion testing of the lumbar spine revealed flexion to 90 degrees, extension to 25 degrees, lateral flexion to 30 degrees, bilaterally, and lateral rotation to 30 degrees, bilaterally. The examiner noted that pain was noted on forward flexion and extension, but did not result in or cause functional loss. There was no evidence of pain with weight bearing or objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the lumbar spine. The Veteran performed repetitive use testing, and there was no additional loss of function or range of motion after at least three repetitions. The examiner indicated that the Veteran was examined immediately after repetitive use over time, and pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. There was no guarding or muscle spasm. Muscle strength testing was normal with no evidence of muscle atrophy. Reflex and sensory examinations were normal with negative straight leg raising test, bilaterally. There was no evidence of radicular pain or other signs or symptoms of radiculopathy. There was no evidence of ankylosis or any other neurologic abnormalities. There was no IVDS and the Veteran was not using any assistive devices. X-rays of the back revealed no thoracic vertebral fracture with loss of 50 percent or more of height, and no fracture or dislocation of the lumbar spine, but moderate facet osteoarthritis at L4-5 and L5-S1, with possible defect at L5. The examiner further noted no pain, weakness, fatigability, or incoordination that could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. There was also no evidence of pain on motion; weakened movement; excess fatigability; diminished endurance; incoordination; pain throughout motion, or; pain on palpation. The examiner noted decreased motion as noted above. The 2017 VA examiner also indicated that there was no evidence of pain on passive range of motion testing, or pain when the joint is used in non-weight bearing. The Veteran denied having further questions or concerns or conflicts during the examination or the need for further explanations. Lastly, the examiner stated that the Veteran worked as an art teacher for six years, and his back disability had no impact on his ability to work. The Board finds the examination adequate for rating purposes. 3. Analysis After a careful review of the lay and medical evidence, the Board finds that the Veteran’s low back disability does not support the assignment of a rating in excess of 20 percent. Based on the objective medical findings of record, the Board finds no basis to award a rating higher than the current 20 percent disability rating. To merit the next-higher rating of 40 percent under the General Rating Formula, there must either be forward flexion of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, and such is not demonstrated by the objective measured ranges of motion testing. Specifically, the September 2009 VA examination noted flexion to 60 degrees, and during the 2017 VA examination, the Veteran’s flexion was to 90 degrees, which is considered normal. See 38 C.F.R. § 4.71a, Plate V. Moreover, the record does not show that the Veteran’s entire lumbar spine is ankylosed, favorably or unfavorably, nor does the Veteran assert otherwise. Indeed, both VA examiners noted there was no ankylosis of the thoracolumbar spine. Nor is a higher rating warranted under the IVDS Formula. At no time during the appeal period does the medical evidence of record reflect incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, the criteria required for the next higher, 40 percent rating. Medical evidence of record does not reflect that the Veteran was ever prescribed bed rest for his back disability and thus no incapacitating episodes of IVDS are demonstrated. The Board also considered whether a higher rating is warranted based on limitations caused by the DeLuca factors. On repetitive motion testing during the 2009 examination, thoracolumbar flexion was to 35 degrees with mild to moderate pain, as well as moderate weakness and fatigue, those measured ranges of motion are in excess of the benchmark required for a higher rating, even when considering functional impairment due to pain. The Veteran is competent to report that he has experienced increased pain in his back that has had an effect on exercise, sports, and recreation. He reported to the September 2009 examiner that he had flare ups lasting up to a few days, but the VA examiner refused to speculate with respect to additional limitations during flare-ups. The 2016 Memorandum Decision determined that the September 2009 VA examiner’s discussion, or lack thereof, as to claimed flare-ups was inadequate. Indeed, as stated by the Court, the September 2009 examination did not provide sufficient information for the Board to make a determination as to staged ratings based on flare-ups. For that very reason, the Board remanded the case for an entirely new examination, which was conducted in November 2017. This examination was scheduled to, in part, assist the Board in assessing the evidence regarding claimed back pain flare-ups. Significantly however, during this new examination, when asked by the examiner, the Veteran denied having any flare-ups of back pain. Thus, the Board has no choice now but to rely on the Veteran’s statement and the examiner’s finding of no flare-ups. Consequently, even considering that the Veteran’s back pain may, at times, result in functional loss beyond what is objectively demonstrated, especially during any flare-ups he may have experienced during the appeal period, the resultant functional loss due to pain does not result in symptoms that more nearly approximate forward flexion of 30 degrees or less or ankylosis; rather, they are contemplated in the currently assigned 20 percent rating. Further, aside from the examination reports, the Veteran’s outpatient treatment notes dated from 2009 to the present are silent for any back complaints or treatment. Indeed, the Veteran has not identified any additional records showing complaints of, or treatment for, his back disability and this remains true even after the Court issued both its 2014 and 2016 Memorandum Decisions. Moreover, the Veteran has not submitted any specific lay assertions indicating a worsening of his back disability since his claim for increase back in August 2009. Consequently, the Board recognizes the attorney’s argument that the severity of the Veteran’s back disability has fluctuated during the appeal period, but finds such argument without merit for the reasons stated above. Accordingly, staged ratings for the Veteran’s back disability are not warranted in this case. Accordingly, the Veteran’s disability picture does not meet or approximate the criteria described for a rating greater than 20 percent at any point during the appeal period. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 202. 4. Neurologic Abnormalities When rating disabilities of the spine, the General Rating Formula for Diseases and Injuries of the Spine requires a separate rating for any associated objective neurologic abnormalities under the appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note 1. However, here, neither lay nor medical evidence shows any neurological impairments as a result of the Veteran’s back disability. 5. Extraschedular Considerations In correspondence dated in August 2016, the Veteran’s attorney argued that the assigned schedular rating did not adequately reflect the Veteran’s functional loss in occupational and daily activities and did not adequately contemplate his total disability picture such that extraschedular consideration is warranted. The attorney stated that under 38 C.F.R. § 3.321(b)(1), there was no specific requirement that the disability will cause marked interference with employment or frequent periods of hospitalization to show that application of the regular schedular standard was inadequate. The attorney provided no evidence to support these assertions, and rather merely concluded that “the Veteran has provided competent lay evidence of additional loss of functionality during frequent flare-ups, he is entitled to evaluated in excess of 20 percent for service-connected back disability.” Notably, neither the Veteran nor his attorney made any specific argument as to how the rating criteria are inadequate to describe the Veteran’s disability level and symptomatology. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2017). The United States Court of Appeals for Veterans Claims (Court) has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) (“[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted”). Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Thun at 116. In other words, the first element of Thun compares a veteran’s symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95. Turning to the first step of the extraschedular analysis, the Board finds that all the symptomatology and impairment caused by the back disability is specifically contemplated by the schedular rating criteria, and therefore no referral for extraschedular consideration is required. Diagnostic Code 5237 provides alternative rating criteria which, in sum, consider factors including incapacitating episodes based on pain, ankylosis, limitation of motion, muscle spasm, guarding, tenderness, abnormal gait, and abnormal spinal contour. The noted mild impairment in ability to do recreation activities, and moderate impairment in ability to exercise and participate in sports has been considered as some evidence that reflects on limitations of motion or function that are part of the schedular criteria, that is, to the extent these findings reflect on occupational impairment. Impairments pertaining to exercise, recreation, and participation in sports are not in and of themselves “occupational” impairments for which an extraschedular rating can be assigned or even considered. Diagnostic Code 5237 incorporates consideration of factors including functional loss due to flare-ups or pain, fatigability, incoordination, painful motion, weakness, interference with sitting, standing, and weight bearing causing additional disability beyond that reflected on range of motion measurement. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. In this case, the back disability has manifested symptoms and impairment including pain, stiffness, and functional impairment characterized by combined range of motion of the thoracolumbar spine that ranged from 235 to 195 degrees with painful motion (including during flare-ups). As these symptoms and related functional impairment are all contemplated by the schedular rating criteria and adequate to rate the service-connected low back disability, no extraschedular referral under 38 C.F.R. § 3.321(b) for this disability is warranted. Finally, neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (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). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel