Citation Nr: 1827264 Decision Date: 05/04/18 Archive Date: 05/14/18 DOCKET NO. 12-20 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for service-connected lumbosacral strain and lumbar degenerative disc disease (DDD) prior to December 1, 2016, and in excess of 20 percent from December 1, 2016. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Smith, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from February 1986 to July 1994. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In September 2016, this appeal was remanded to the Agency of Original Jurisdiction for further development. The appeal was remanded for consideration of additional evidence submitted by the Veteran and to afford the Veteran a new VA examination for his back, which have taken place. As there has been substantial compliance with the remand directives, further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that remand not required where there was substantial compliance with remand directives). FINDINGS OF FACT 1. Prior to December 1, 2016, the Veteran's back disability manifested in forward flexion of the thoracolumbar spine of 70 degrees and no favorable or unfavorable ankylosis of either the thorcolumbar or entire spine; additionally, there is no evidence of intervertebral disc syndrome (IVDS). 2. From December 1, 2016, the Veteran's back disability manifested in forward flexion of the thoracolumbar spine of 60 degree and no favorable or unfavorable ankylosis of either the thorcolumbar or entire spine; additionally, there is no evidence of IVDS. CONCLUSIONS OF LAW 1. Prior to December 1, 2016, the criteria for a disability rating in excess of 10 percent for lumbosacral strain with lumbar DDD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.71a, Diagnostic Codes 5327-5242 (2016). 2. From December 1, 2016, the criteria for a disability rating in excess of 20 percent for lumbosacral strain with lumbar DDD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.71a, Diagnostic Codes 5237-5242 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A and 38 C.F.R. § 3.159. For the issues decided herein, VA has complied with all duties necessary to notify the Veteran in substantiating the claims on appeal. The Board finds VA has satisfied its duty to assist the Veteran in the development of the claim as well. VA has obtained all identified and available service and post-service treatment records, and the most recent VA examination afforded the Veteran in December 2016 is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). The examiner considered the Veteran's symptoms and history, performed appropriate testing, and addressed all relevant rating criteria. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159 and that the Veteran will not be prejudiced as a result of the Board's adjudication of this claim. Increased Rating The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). At the time of an initial rating, consideration of the appropriateness of a staged rating is also required. Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on 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 of the two evaluations 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. The Veteran's lumbar strain and lumbar DDD has been evaluated under Diagnostic Codes 5237-5242. 38 C.F.R. § 4.71a (2017). Diagnostic Codes 5237 and 5242 are evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 spinal contour; or vertebral body fracture with loss of 50 percent or more of the height is rated at 10 percent. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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 is rated at 20 percent. Forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine is rated at 40 percent. With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, unfavorable ankylosis of the entire thoracolumbar spine is rated at 50 percent. A maximum 100 percent rating is reserved for unfavorable ankylosis of the entire spine. Note (1) to the General Rating Formula for Diseases and Injuries of the Spine indicates to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2) (See also Plate V.) provides that 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. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Additionally, the Court has held that an adequate VA examination for the joints must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59. Analysis Facts The Veteran contends that his back disability is more disabling than the disability ratings assigned. Specifically, he indicated in his August 2012 Form 9 that he believes his back should be rated at 40 percent. As the Veteran is assigned staged ratings for his service-connected back disability, the Board will discuss each period separately. Prior to December 1, 2016 The medical evidence of record includes private and VA reports, which the Board will discuss chronologically. An October 2009 primary care note from Columbia VA Medical Center reflects the Veteran's reports of chronic low back pain. In June 2011, the Veteran underwent a VA back examination. The examination report indicates that the Veteran reported flare-ups of the back occurring approximately four times a year and lasting for four days. The examiner noted that the flare-ups are typically brought on by activity and resolve with rest and pain medication. The examiner also noted that the Veteran uses a back brace and a cane at times to aid in ambulation. Physical examination indicated flexion of the lumbar spine to 70 degrees and total range of motion of 160 degrees. The examiner indicated that all ranges of motion result in pain throughout although the Veteran's range of motion was not additionally limited following repetitive use on this examination. The Veteran also had diffuse tenderness to palpation of the lumbar spine and no spasms. The examiner indicated that the Veteran had 5/5 strength in all four extremities with normal symmetric deep tendon reflexes and normal sensation. The straight leg test was normal bilaterally. A November 2011 general medical VA examination report notes stiffness and constant pain of the back. A November 2012 VA examination report reflects the Veteran's reports of flare-ups that impact the function of the back, described by the Veteran as difficulty bending to tie his shoes and lifting as well as difficulty with prolonged sitting and standing. The examiner indicated that the Veteran had initial range of motion of flexion to 70 degrees with objective evidence of painful motion beginning at 70 degrees. His total range of motion was 180 degrees. The Veteran was able to perform repetitive-use testing with three repetitions, and he had post-test flexion of 70 degrees and total range of motion of 180 degrees. The examiner indicated that there was no additional loss or functional impairment in range of motion following repetitive use testing. The examiner indicated that the Veteran has functional loss of the back, described as less movement than normal and pain on movement. The examiner also indicated that there was localized tenderness or pain to palpation for joints and/or soft tissue of the back. There was no guarding or muscle spasm. Muscle strength testing was all normal. There was no muscle atrophy. Reflex and sensory exams were all normal. The straight leg test was negative for the right and left leg. The examiner indicated that there was no radicular pain or symptoms. The examiner also indicated that there were no other neurological abnormalities or findings related to a back condition, such as bowel or bladder problems/pathologic reflexes. The examiner indicated that the Veteran does not have IVDS of the back. The examiner noted regular use of a cane due to back pain. The examiner indicated that there was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms, and the examiner indicated that there are no associated scars. An April 2013 report from Southeastern Spine Institute indicates that the Veteran reported low back pain for 20 or more years. He reported that his pain had been manageable until approximately December 2012 when he fell out of bed and had a significant increase in his back pain and going into his left leg. A June 2013 report from Southeastern Spine Institute indicates that the Veteran was being seen as a follow-up for back injections he received in May 2013. He reported that the injection helped more than the previous injection and that his pain was currently a 3 or 4 out of 10. The examiner noted that when present, the Veteran's pain occasionally radiates into his left lower extremity. The examiner indicated that the Veteran's pain is made worse with certain positions, walking or standing for prolonged periods of time, and long car rides. The examiner noted that the Veteran ambulates with a cane and that strength in his lower extremities was 5/5 in all major muscle groups bilaterally except for his left quadriceps and TA, which are decreased by 1 motor grade. The examiner indicated that the Veteran's patella and Achilles tendon reflexes were intact and symmetrical and that there was no focal or sensory deficits at the time of the exam. There are also lay statements of record. In his August 2011 notice of disagreement, the Veteran indicated that his back condition is worse than the VA examiner stated. In his August 2012 form 9, he indicated that it is difficult to bend forward or backward without immense pain and that he takes medication for his back twice daily. As noted, he indicated that he is requesting a 40 percent evaluation for his back condition because it does not allow him to function at full capacity. He indicated that it hurts when he lays, stands, sits, and walks. He indicated that any of these conditions can cause pain if done for more than 5 minutes. Having reviewed the evidence of record, the Board finds that a 10 percent rating is appropriate during the appeal period prior to December 1, 2016. During this period of the appeal, the Veteran's flexion of the lumbar spine was limited by pain to at worst to 70 degrees, and his total range of motion was between 160 and 180 degrees. This range of motion is commensurate with a 10 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. A higher rating is not warranted. At no time during this period of the appeal does the evidence reflect that the Veteran had flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, as required for a higher rating based on limitation of motion. Nor is a higher rating warranted for any form of ankylosis of the thoracolumbar or entire spine. There is no indication of favorable or unfavorable ankylosis of the thoracolumbar spine. Nor is there any indication of unfavorable ankylosis of the entire spine. To the contrary, the adequate VA examination reports of record, which are the only medical evidence of record to address ankylosis, indicate that the Veteran does not have ankylosis of the thoracolumbar or entire spine. Nor has the Veteran suggested that he experiences ankylosis of the spine. A higher rating is also not warranted for functional loss. The Board acknowledges the Veteran's reports that his back condition causes pain and weakens his ability to walk, stand, sit, or ride in cars for a prolonged period of time. However, the probative medical evidence during this period of the appeal is consistent that the Veteran did not have additional limitation in range of motion due to pain. As to the Veteran's reports of back pain, the Board notes that the impact of pain on the Veteran's range of motion is already contemplated in the assigned 10 percent rating. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. at 206 (1995). The Board has also considered whether a separate evaluation is warranted. However, the medical evidence is consistent that the Veteran did not have any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment. Nor does the Veteran suggest that he has bowel or bladder problems. The record also does not reflect any sensory impairment related to the Veteran's back disability during this period of the appeal. As such, a separate rating for sensory impairment is not warranted. 38 C.F.R. § 4.124a. A separate rating for associated scars is also not warranted as the medical evidence is consistent that the Veteran does not have any scars associated with his back condition. Nor has he asserted as such. Therefore, Diagnostic Codes 7800-7805 for scars are not applicable. 38 C.F.R. § 4.118. Given the evidence, the Board determines that a 10 percent rating, but no higher, is warranted prior to December 1, 2016. From December 1, 2016 In December 2016, the Veteran underwent another VA back examination. The examiner indicated diagnoses for lumbar degenerative disc disease with right sided radiculopathy. The examiner noted that the Veteran had been involved in a minor car accident that morning but had indicated that he was fine. He indicated that his back pain at present was his baseline without any additional discomfort. He requested to proceed with the exam and stated that he felt "fine" and denied any injuries, new symptoms, or exacerbation of back pain from the car accident. The Veteran reported that since his last VA back exam, his back pain has become more severe and constant. He reported that he had begun to have radiculopathy pain radiating into his right leg and hip. He denied incontinence. The examiner indicated that the pain can be acute at times and that the Veteran reported using a cane to assist with balance. The Veteran reported flare-ups, which he described as occurring with increased activity. He reported functional loss or functional impairment of the back, which he described as the inability to bend over to tie his shoes as this often aggravates his back pain. He also indicated that he pays someone to clean his home as he finds that housework triggers back pain exacerbations. His initial range of motion was indicated to be abnormal, and his flexion measured 0 to 60 degrees and total range of motion of 155 degrees. The examiner indicated that range of motion itself contributed to a functional loss, described as reduced ability to perform activities of daily living. Pain was noted on exam, and the examiner indicated that it causes functional loss. There was evidence of pain with weight bearing. There was also objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the back. The Veteran was able to perform repetitive use testing with at least three repetitions. There was no additional loss of function or range of motion after three repetitions. The Veteran was not being examined immediately after repetitive use over time. As to whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time, the examiner indicated that she was unable to say without mere speculation as the Veteran was not being examined following repeated use over time. The examiner indicated that the exam was being conducted during a flare-up. As to whether pain, weakness, fatigability or incoordination significantly limits functional ability with flare-ups, the examiner indicated that pain does. The examiner was able to describe the functional loss in terms of range of motion and indicated that flexion was 0 to 60 degrees and total range of motion was 155 degrees. The examiner indicated that the Veteran has guarding but not resulting in abnormal gait or abnormal spinal contour. As to additional factors contributing to the Veteran's back disability, the examiner indicated that there is less movement due to pain. Muscle strength testing was all normal. Reflex exams were all normal. Sensory exams were all normal. The examiner indicated that the Veteran has radicular pain or other symptoms due to radiculopathy. The examiner specified that the Veteran has mild constant and intermittent pain for the right lower extremity as well as mild paresthesias and/or dysesthesias for the right lower extremity. There were no sensory symptoms indicated for the left lower extremity. The Board notes that the Veteran is already service-connected per this examination for radiculopathy of the right lower extremity associated with the back and has received a 10 percent disability rating for this condition. The examiner indicated that there is no ankylosis and no other neurologic abnormalities or findings related to a back condition. The examiner also indicated that the Veteran does not have IVDS and episodes requiring bed rest. The examiner noted that the Veteran constantly uses a cane as an assistive device. The examiner indicated that there were no other pertinent physical findings, complications, conditions, signs or symptoms. The examiner also indicated that there were no associated scars. As to pain on passive range of motion, the examiner indicated that passive range of motion of the spine was not performed as it is not feasible to do so in a safe and reasonable manner. The examiner indicated that a non-weight bearing assessment is not applicable as there is no objective evidence of pain when the spine is in a non-weight bearing position at rest. The examiner also indicated that opposing joint assessment is not applicable because the spine does not have an opposing joint. Having reviewed the evidence of record, the Board finds that a 20 percent rating is appropriate during the appeal period from December 1, 2016. During this period of the appeal, the Veteran's flexion of the lumbar spine was limited to 60 degrees. This range of motion is commensurate with a 20 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. However, a higher rating is not warranted. At no time during this period of the appeal does the evidence reflect that the Veteran had flexion of the thoracolumbar spine of 30 degrees or less, as required for a higher rating based on limitation of motion. Nor is a higher rating warranted for any form of ankylosis of the thoracolumbar or entire spine. The adequate VA examination report during this period of the appeal also indicates that the Veteran does not have ankylosis of the thoracolumbar or entire spine. Nor has the Veteran suggested that he experiences ankylosis of the spine. A higher rating is also not warranted for functional loss. The Board again acknowledges the Veteran's reports that his back condition causes pain and weakens his ability to walk, stand, sit, or ride in cars for a prolonged period of time. The Board also acknowledges that the December 2016 VA examiner indicated that the Veteran has additional limitation of motion during flare-ups due to pain. However, his range of motion at the examination was measured during a flare-up and measured as flexion to 60 degrees. There is no indication that he had flexion of the thoracolumbar spine of 30 degrees or less. Additionally, the Board notes that the impact of pain on the Veteran's range of motion is already contemplated in the assigned 20 percent rating. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. at 206 (1995). The Board has also considered whether a separate evaluation is warranted. However, the medical evidence does not reflect that the Veteran has associated objective neurologic abnormalities other than the right leg radiculopathy that has already been service-connected and compensated, and there is no evidence of bowel or bladder impairment. Nor does the Veteran suggest that he has bowel or bladder problems. To the contrary, he denied incontinence. Nor is a separate rating warranted for sensory impairment of the left lower extremity. There were no sensory or radicular pain or symptoms indicated for the left lower extremity during the December 2016 VA exam by either the examiner or the Veteran. As such, a separate rating for sensory impairment for the left lower extremity is not warranted. 38 C.F.R. § 4.124a. A separate rating for associated scars is also not warranted as the medical evidence is consistent that the Veteran does not have any scars associated with his back condition. Nor has he asserted as such. Therefore, Diagnostic Codes 7800-7805 for scars are not applicable. 38 C.F.R. § 4.118. Given the evidence, the Board determines that a 20 percent rating, but no higher, is warranted from December 1, 2016. Consideration has also been given to assigning additional staged ratings. Fenderson v. West, 12 Vet. App. at 119. However, the record does not suggest that there were additional periods where the Veteran's disability warranted higher or lower schedular ratings than those assigned. There were no indications of flexion limited to 30 degrees, ankylosis, or neurological abnormalities associated with the Veteran's back disability. Accordingly, the Board finds that the ratings assigned are appropriate. ORDER A disability rating in excess of 10 percent for service-connected lumbosacral strain with degenerative disc disease prior to December 1, 2016, is denied. A disability rating in excess of 20 percent for service-connected lumbosacral strain with degenerative disc disease from December 1, 2016, is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs