Citation Nr: 18123717 Decision Date: 08/02/18 Archive Date: 08/02/18 DOCKET NO. 11-13 401 DATE: August 2, 2018 ORDER Entitlement to an initial disability rating greater than 10 percent prior to May 11, 2015 and greater than 20 percent thereafter for degenerative arthritis and strain of the thoracolumbar spine (lumbar spine or low back disability) is denied. REMANDED Entitlement to a total disability rating due to individual unemployability based on service-connected disabilities (TDIU) prior to April 7, 2010 is remanded. FINDINGS OF FACT 1. Prior to May 11, 2015, the Veteran’s service-connected low back disability manifested as no worse than: forward flexion limited to 80 degrees; combined range of motion of 200 degrees; muscle spasms not deemed severe enough to result in abnormal spinal contour; functional limitations including interference with sitting, standing, and weight bearing; and feelings of pain; however, there was no competent medical evidence of any form of ankylosis, or incapacitating episodes of intervertebral disc syndrome (IVDS) lasting at least two weeks. 2. Since May 11, 2015, the Veteran’s service-connected low back disability manifested as no worse than forward flexion limited to 50 degrees (with pain noted on examination that contributed to functional loss); muscle spasms severe enough to result in abnormal gait or abnormal spinal contour; guarding not severe enough to result in abnormal gait or abnormal spinal contour; functional limitations such as disturbance of locomotion and exacerbated pain with extended standing, sitting, walking, and bending; however, there was no competent medical evidence of any form of ankylosis, or incapacitating episodes of IVDS. CONCLUSIONS OF LAW 1. Prior to May 11, 2015, the criteria for an initial disability rating greater than 10 percent for a lumbar spine disability were not met. See 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242-5237. 2. Since May 11, 2015, the criteria for an initial disability rating greater than 20 percent for a lumbar spine disability have not been met. See 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, DC 5242-5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1979 to July 1983 and from July 1986 to June 2006. He also had additional inactive service. See DD Form 214 (for first period of active service); Army National Guard Report of Separation. The Veteran requested a Board hearing in his October 2013 substantive appeal regarding entitlement to a TDIU (in pertinent part). However, in August 2014, his attorney expressly withdrew that hearing request on his behalf and submitted a brief in lieu of the Board videoconference hearing that had been scheduled for August 2014. See correspondence received August 2014. In his October 2015 substantive appeal regarding the increased initial rating claim on appeal, the attorney expressly stated that the Veteran did not want a Board hearing. In October 2014, the Board remanded the issues on appeal for additional development. The Board finds that the RO substantially complied with the remand instructions and an additional remand to comply with the remand directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, a remand of the TDIU clam on appeal is required as discussed below. After the September 2015 Statement of the Case (SOC), VA received additional evidence pertinent to the TDIU claim on appeal that the Agency of Original Jurisdiction (AOJ) had not considered previously. Accordingly, in May 2018, the Board requested a waiver of his right to AOJ review of such evidence; however, neither he nor his representative responded. Thus, the issue of entitlement to a TDIU prior to April 7, 2010 must be remanded for the issuance of a Supplemental Statement of the Case (SSOC). However, the additional evidence was not pertinent to the increased initial rating claim decided below, and/or was duplicative of evidence previously considered by the AOJ regarding that issue; therefore, the Board may proceed to decide that issue. The General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) provides for the assignment of separate disability evaluations under appropriate Diagnostic Codes (DCs) for any objective neurologic abnormalities associated with a disease or injury of the spine. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Here, in a September 2015 rating decision, the AOJ awarded a separate, 10 percent rating for left lower extremity radiculopathy effective May 11, 2015. The RO explained that service connection for left lower extremity radiculopathy was established as related to his service-connected thoracolumbar spine disability. In October 2015, he filed a notice of disagreement (NOD) appealing the initial rating assigned, and in a July 2016 SOC, the RO continued the 10 percent rating. A notice included with the July 2016 SOC clearly explained the Veteran’s appeal rights, but neither he nor his attorney perfected a timely substantive appeal or otherwise informally challenged the July 2016 SOC. Therefore, the issue of entitlement to an increased initial rating for left lower extremity radiculopathy is not presently before the Board. While this appeal was in remand status, in a September 2015 rating decision, the RO increased the initial low back disability rating to 10 percent from January 7, 2010 and to 20 percent from May 11, 2015. Furthermore, in a January 2016 rating decision, the RO partially granted entitlement to TDIU from April 7, 2010 only. In a January 2016 SSOC, the RO continued the denial of entitlement to TDIU prior to April 7, 2010. The Board has re-characterized the issues on appeal accordingly. The issue of entitlement to an increased rating for a service-connected right knee condition was previously on appeal and denied in an October 2014 Board decision. Therefore, that issue is no longer on appeal. The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Pertinent regulations for consideration were provided to the Veteran in the September 2015 SOC and will not be repeated here in full. Increased Initial Rating The AOJ assigned initial disability ratings for the Veteran’s service-connected low back disability of 10 prior to May 11, 2015 and 20 percent thereafter under 38 C.F.R. § 4.71a, DC 5242-5237. He seeks higher initial ratings. See, e.g., May 2011 substantive appeal (seeking 60 percent rating); October 2015 substantive appeal and NOD (seeking 40 percent rating). The General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) under 38 C.F.R. § 4.71a provides, in pertinent part, the following rating criteria: • unfavorable ankylosis of the entire spine (100 percent); • unfavorable ankylosis of the entire thoracolumbar spine (50 percent); • forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (40 percent); or • 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 abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis (20 percent). Moreover, the Board finds the evidence is at least in equipoise as to whether the Veteran has intervertebral disc syndrome (IVDS). See, e.g., June 2010 VA imaging report (showing lumbar degenerative disc disease). Thus, the Board will consider whether the evidence warrants a higher initial rating for his thoracolumbar spine disability under 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). The IVDS Formula warrants higher ratings for IVDS if the evidence shows: • incapacitating episodes having a total duration of at least 6 weeks during the past 12 months (60 percent); • incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent); • incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent). See id. An “incapacitating episodes” is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See id., Note (1). For the reasons below, higher initial disability ratings for the Veteran’s low back disability are unwarranted for both periods at issue in this appeal. A. Prior to May 11, 2015 The Veteran currently has a 10 percent initial disability rating prior to May 11, 2015 under DC 5242-5237 based on painful motion. See 38 C.F.R. § 4.59. He seeks a higher initial rating. See, e.g., May 2011 VA Form 9 (seeking 60 percent rating); October 2015 VA Form 9 and NOD (seeking 40 percent rating). After a full review of the record, the Board finds a higher initial rating for the Veteran’s low back disability is unwarranted prior to May 11, 2015. First, the evidence of record from this period did not show or approximate thoracolumbar spine forward flexion greater than 30 degrees but not greater than 60 degrees, or combined thoracolumbar spine range of motion not greater than 120 degrees. See 38 C.F.R. § 4.71a, DC 5242-5238, General Rating Formula. At worst, the medical evidence showed thoracolumbar spine forward flexion from 0 to 80 degrees, and combined range of motion measurement of record of 200 degrees. See April 2010 VA examination report. These range of motion findings fall squarely within the criteria for a 10 percent rating, and do not more nearly approximate the criteria for a 20 percent rating under the General Rating Formula. Second, the Veteran is not entitled to a higher initial rating under the IVDS Formula because there was no evidence during this period of “incapacitating episodes” due to IVDS that lasted at least two weeks. The Board acknowledges the March 2014 military medical facility note showing a private emergency room discharge summary from a recent hospitalization for low back pain and muscle spasms. The discharge summary’s home care plan provides (emphasis added), “You may need to stay in bed the first few days. But, as soon as possible, begin sitting or walking to avoid problems with prolonged bedrest.” This reference to physician-prescribed bedrest arguably constitutes an “incapacitating episode” under the IVDS Formula; however, even assuming that is the case, the emergency room provider only prescribed bedrest for a “few days;” indeed, the note expressly urged him avoid prolonged bedrest. Thus, the incapacitating episode noted here fell well below the minimum of two weeks contemplated by the criteria for a higher, 20 percent rating under the IVDS formula. Furthermore, the Board considered the possibility of a higher rating for this period based on functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). However, such symptoms and impairments are contemplated by the 10 percent rating currently assigned for this period. Moreover, the Board affords great probative value to the July 2013 VA examiner’s finding of no pain or loss of range of motion on examination, and the Veteran’s report then that he bent over to relieve back pain and stiffness. Accordingly, the 2013 VA examiner competently and persuasively concluded that he was “not likely to lose any additional ROM [range of motion] during a flare-up since bending helps his pain.” In summary, a higher initial rating is unwarranted for this period under DeLuca and related authorities. The Board considered the Veteran’s VA treatment records, private treatment records, military facility treatment records, and Social Security Administration (SSA) disability records from this period. They show treatment for his lumbar spine condition, credible reports of symptoms and functional impairments, and findings that generally were consistent with the 2010 and 2013 VA examination reports discussed above. They do not include objective medical findings that would warrant a higher initial rating for this period under the relevant rating criteria. Moreover, to the extent that such evidence included findings that deviated from those in the 2010 and 2013 VA examination reports, they still did not support a higher initial rating for the following reasons. The Board considered medical evidence noting low back muscle spasms during this period. See April 2014 military facility medical notes. However, that provider did not find that the noted muscle spasms were severe enough to result in or approximate abnormal gait or abnormal spinal contour (such as scoliosis, reversed lordosis, or abnormal kyphosis), as contemplated by the 20 percent rating under the General Rating Formula. Moreover, in the same April 2014 note, the military provider found standing flexion could not be assessed due to “patient discomfort.” However, this finding was vague because the provider did not specify whether such discomfort referred to subjective reports of pain, as opposed to objective evidence of painful motion during range of motion testing, such as facial expressions or grimacing. In contrast, the 2013 VA examiner affirmatively and specifically found no objective evidence of painful motion during all pertinent range of motion tests. Thus, the Board affords more probative value to the 2013 VA examination’s forward flexion finding than to the 2014 military provider’s vague finding noted above. Moreover, although the April 2010 VA examination reported noted a “guarded gait,” the examiner did not attribute that symptom to the Veteran’s low back condition. To the contrary, the weight of the evidence shows that competent medical providers and the Veteran consistently have attributed his abnormal gait to his service-connected right knee condition, for which he currently has a 30 percent disability rating from January 1, 2010. See, e.g., April 2010 VA examination report (finding no causal link between present gait or chronic right knee condition and lumbar spine condition); July 2013 VA examination report (noting Veteran’s reported history of “years of an antalgic gait from knee condition;” finding back pain appeared to be secondary to many years of antalgic gait due to his right knee condition after 2008 right knee replacement) (emphasis added); July 2010 private treatment record (noting Veteran’s walking difficulties reportedly began after 2008 right total knee replacement); May 2010 podiatry private treatment record (noting history of walking difficulties began after right total knee replacement three years prior and observing leg length discrepancy); December 2008 private treatment record (observing crouched gait issues in context of right knee treatment, status post November 2008 right knee total arthroplasty). Moreover, gait abnormalities are expressly contemplated by the rating currently assigned for his service-connected right knee disability. See October 2014 Board decision (adjudicating claim for increased rating for total right knee replacement, and expressly considering November 2009 medical evidence noting asymmetric gait). Thus, even assuming for the sake of argument that the Veteran’s gait abnormalities were due to his service-connected low back condition, assigning a higher rating under the General Rating Formula this symptom would amount to pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (holding separate disability ratings may be assigned for distinct disabilities resulting from same injury so long as symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other condition). The Board acknowledges the Veteran’s and his representative’s assertions that his lumbar spine disability was of great severity, such that a higher initial rating is warranted for this period. However, the Board finds that the weight of the most probative, competent medical evidence summarized above warrants no higher than the 10 percent initial rating currently assigned. The Board does not doubt that he had lumbar spine symptoms such as some limitation of motion with subjective pain, and functional impairments such as interference with sitting, standing, and weight bearing. However, neither he nor his representative have cited specific, objective medical evidence competently showing that a higher rating is warranted under the pertinent rating criteria summarized above. The Board recognizes that the Veteran was awarded a TDIU from April 7, 2010 in part due to his low back condition. See January 2016 rating decision. Evidence regarding unemployability may be relevant to a veteran’s overall level of impairment. However, it is not dispositive of the separate issue presently before the Board of entitlement to a higher schedular rating for his service-connected lumbar spine condition. Indeed, the legal standards for entitlement to a TDIU focus on unemployability (see 38 C.F.R. § 4.16), and permit consideration of subjective factors such as employment and education background. Those legal standards differ from the objective, schedular rating criteria under the General Rating Formula and the IVDS Formula summarized above. Furthermore, the evidence of record from this period does not show neurological abnormalities related to the service-connected thoracolumbar spine condition other than left lower extremity radiculopathy (which, as discussed above, is not on appeal). Accordingly, a separate rating for neurological abnormalities (other than the separate, compensable rating currently in effect for left lower extremity radiculopathy) is unwarranted. In summary, a higher initial rating for the Veteran’s thoracolumbar spine disability is unwarranted prior to May 11, 2015. The benefit of the doubt rule under 38 U.S.C. § 5107(b) does not apply because there is not an approximate balance of evidence. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Since May 11, 2015 The Veteran currently receives a 20 percent initial disability rating from May 11, 2015 under DC 5242-5237 for his lumbar spine disability for limitation of motion and muscle spasms severe enough to result in abnormal gait or abnormal spinal contour. He seeks a higher initial rating. See, e.g., May 2011 VA Form 9 (seeking 60 percent rating); October 2015 VA Form 9 and NOD (seeking 40 percent rating). After a full review of the record, the Board finds a higher initial rating for this period is unwarranted for the following reasons. First, at worst, thoracolumbar spine forward flexion has ended at 50 degrees. See May 2015 VA examination report. This limitation of motion falls squarely within the criteria for a 20 percent rating and does not more nearly approximate the criteria for a higher, 40 percent rating (requiring forward flexion of the thoracolumbar spine of 30 degrees or less). Second, no form of ankylosis has been shown during this period. The 2015 VA examiner competently found no ankylosis upon examination. Moreover, the 2015 VA examiner also found no muscle atrophy and some (though limited) range of motion, which bolster the examiner’s finding of no ankylosis. Nor is the Veteran entitled to a higher initial rating under the IVDS Formula because there is no evidence of “incapacitating episodes” of IVDS at any time during this period. The Board also has considered functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, supra. However, such symptoms and impairments are contemplated by the 20 percent rating currently assigned for this period. The Board finds that a higher rating during this period is unwarranted based on functional loss due to such impairments. Furthermore, the evidence of record from this period does not show neurological abnormalities related to the service-connected lumbar spine condition other than left lower extremity radiculopathy (which is not on appeal as discussed above). Accordingly, a separate rating for neurological abnormalities (other than the separate rating currently in effect for left lower extremity radiculopathy) is unwarranted. The Board acknowledges the Veteran’s and his representative’s assertions that his lumbar disability has been of great severity during this period such that a higher initial rating is warranted. However, the most probative and competent medical evidence summarized above supports the 20 percent initial rating currently assigned for the period. The Board does not doubt that the Veteran has had lumbar spine symptoms such as some limitation of motion, feelings of pain, muscle spasms, and impairments such as exacerbated pain with extended standing, sitting, walking, and bending. However, neither he nor his representative has cited specific, competent medical evidence that would warrant a higher rating under the relevant rating criteria. The Board recognizes that the Veteran was awarded a TDIU in part due to his low back condition effective April 7, 2010. See January 2016 rating decision. However, as discussed in the preceding section, that decision is not dispositive of the separate issue here of entitlement a higher schedular rating. In summary, a higher initial rating for the Veteran’s thoracolumbar spine disability is unwarranted from May 11, 2015. The benefit of the doubt rule under 38 U.S.C. § 5107(b) does not apply because there is not an approximate balance of evidence. See Gilbert, supra. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record regarding either period addressed above. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming Board not required to address issues unless specifically raised by claimant or reasonably raised by evidence of record). Duties to Notify and Assist The Board recognizes the Veteran’s and his representative’s boilerplate argument in the October 2015 substantive appeal that the duty to assist was not satisfied. However, the Board rejects that argument as vague and conclusory because it failed to specify any duty to assist deficiencies. Moreover, the Board affirmatively finds that VA satisfied the duty to assist in the development of the claim adjudicated above, including obtaining relevant medical evidence, affording the Veteran the opportunity to submit relevant medical evidence, and providing adequate VA examinations. Neither the Veteran nor his representative has raised any other specific duty to notify or duty to assist issues regarding the claim denied above. 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). REASONS FOR REMAND Entitlement to a TDIU prior to April 7, 2010 is remanded to afford the Veteran procedural due process. After the January 2016 SSOC, VA received evidence pertinent to that issue that the AOJ did not previously consider. In May 2018, the Board requested a waiver of the Veteran’s right to AOJ review of this evidence, but neither he nor his representative responded. Therefore, a remand of this issue is required for AOJ review of this evidence. The matters are REMANDED for the following action: Readjudicate the claim. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, then issue an SSOC that considers all evidence received since the January 2016 SSOC, including but not limited to his VA vocational rehabilitation claim file received in December 2017. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel