Citation Nr: 1736634	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  15-38 910A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to a disability rating in excess of 20 percent for low back pain with degenerative disc disease (DDD) of the lumbosacral spine.


REPRESENTATION

Veteran represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

B. J. Komins, Associate Counsel






INTRODUCTION

The Veteran had active service from February 1965 to October 1989

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

The appeal was remanded by the Board to the Agency of Original Jurisdiction (AOJ) in June 2016.  The case has since returned to the Board for further appellate action.

The Board notes that the Veteran submitted a VA Form 9, Appeal to Board of Veterans' Appeals, in November 2015 to appeal a September 1991 rating decision.  That rating decision is final.  The Veteran's claim for a disability rating in excess of 20 percent for a lumbosacral spine disability is dated January 20, 2012.

The Board adds that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record of evidence.  Here, neither the Veteran nor the evidence of record have raised the issue of TDIU, therefore it is not considered herein,

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

Low back pain with DDD is manifest by pain and remaining functional flexion is better than 30 degrees.



CONCLUSION OF LAW

Low back pain with DDD is no more than 20 disabling.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2016). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Stegall Considerations

As noted in the Introduction, the case was remanded to the RO in June 2016 for additional development.  The Board is satisfied that there has been substantial compliance with its remand orders.  See Dyment v. West, 13 Vet. App. 141, 146-67 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1999) (holding that the Board errs as a matter of law when it fails to ensure compliance with its remand orders).

II.  Duties to Notify and Assist

Regarding the duty to notify, once a claim of service connection has been granted, the filing of an NOD with the RO's rating decision of a disability does not trigger additional 38 U.S.C.A. § 5103(a) (West 2014) notice.  See 38 C.F.R. § 3.159(b)(3) (2016).  Therefore, further VCAA notice is not applicable in this case for an increased schedular rating for a lumbosacral spine disability from January 20, 2012.  See id.; see also, e.g., Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128, 136 (2008) (holding that where a claim for service connection has been granted, "the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to downstream elements," such as the effective date of an initial rating).  Thus, with respect to the claim on appeal, VA has fulfilled its duty to notify the Veteran.

VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the increased rating claim for a lumbosacral spine disability.  VA treatment records, private medical treatment records, and lay statements have been associated with the claims file.

VA's duty to assist includes providing a medical examination of obtaining a medical opinion when necessary to decide a claim.  See 38 U.S.C.A. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2016).  For the period of appeal described in the Introduction, the Veteran was afforded VA examinations addressing a lumbosacral spine disability in October 2012 and in February 2017.  The Board finds that an additional medical examination or opinion is not necessary to decide the Veteran's claim.  See Barr v. Nicholson, 12 Vet. App. 303, 311 (2007) ("A medical opinion is adequate when it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'").

The Veteran has not identified any additional relevant evidence, nor does the record otherwise indicate that there is outstanding relevant evidence to obtain.  Thus, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to her claim is required for VA to comply with its duty to assist.  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other ground, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

III.  Increased Rating

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule).  See generally 38 C.F.R. § Part 4 (2016).  The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  See 38 U.S.C.A. § 1155 (West 2014);  38 C.F.R. § 4.1 (2016).  

VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).  Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. § 4.7 (2016).  Otherwise, VA will assign the lower rating. Id.  The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings." See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999).  Here, the disability has not changed significantly and a uniform evaluation is warranted.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  
38 C.F.R. § 4.40 (2016).  Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id.; 
see also 38 C.F.R. § 4.59 (2016)(discussing facial expressions such as wincing, muscle spasm, crepitation, etc.).  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id.  Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement.  38 C.F.R. § 4.45 (2016).

The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59 (2016).  Although the first sentence of 38 C.F.R. § 4.59 (2016) refers only to arthritis, the regulation applies to joint conditions other than arthritis.  Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011).

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).

Pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40 (2016)).

The final sentence of 38 C.F.R. § 4.59 (2016) requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Correia v. McDonald, 28 Vet. App. 158 (2016).

The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006).  It is noted that competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  

In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).

The general rating formula for disease and injuries of the spine is laid out in 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2016). 

The general rating formula is as follows:

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 spine:  100 percent disabling

Unfavorable ankylosis of the entire thoracolumbar spine:  50 percent disabling

Forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine:  40 percent disabling

Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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:  20 percent disabling

Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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:  10 percent disabling

Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees.  The normal combined range of motion for the thoracolumbar spine is 240 degrees.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2016). 

Intervertebral disc syndrome (IVDS) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25.  The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes warrants a maximum 60 percent rating when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months.  A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months.  Note 1 provides that for the purposes of evaluations under Diagnostic Code 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a,  Diagnostic Code 5243 (2016).

IV.  Lumbosacral Spine Disability

The Veteran contends that his service-connected lumbosacral disability warrants a disability rating in excess of 20 percent. 

A review of the Veteran's private medical records from Dr. G. reveal that the Veteran sought treatment and consultation for his lumbosacral spine disability on January 28, 2011.  Dr. G. noted that the Veteran came to his office in follow-up for back pain and magnetic resonance imaging (MRI) results.  Dr. G. wrote that the Veteran's symptoms began 30 years earlier.  He noted that the Veteran described his back pain as "dull aching" and intermittent; Dr. G. opined that the Veteran's pain was moderate-7 in a scale of 1 to 10.  The location of the Veteran's pain, according to Dr. G., was in his lower back, radiating into both legs.  Furthermore, Dr. G. reported that the Veteran's symptoms were worse with prolonged standing or walking; however, they improved with sitting.  Also noted was some element of mechanical pain.  As reported by Dr. G., the MRI report provided impressions of broad-based disc bulges with minimal central posterior osteophyte formations at all lumbar levels with no finding for disc protrusion, spinal stenosis, or neural foraminal stenosis.

In a June 2011 treatment report, Dr. G. wrote that the Veteran came for a 12-week post-operative visit.  Dr. G. had performed a lumbar decompression and posterior lateral fusion in March 2011.  Dr. G. remarked that the Veteran was ready to come out of a brace; was ambulating without difficulty; and was no longer taking analgesics.  Furthermore, the Veteran's back and leg pain were gone, and, as a result,  Dr. G. opined that he was sleeping well.

The evidence of record includes an October 2011 letter from Dr. G. addressed to the Veteran.  In pertinent part, this letter conveyed Dr. G.'s assessments of the Veteran's lumbosacral spine disability, amongst his other medical issues.  He also summarized the genesis and history of the disability, referencing records and the Veteran's lay accounts.  Furthermore, Dr. G. described the Veteran's lumbar procedures and respective courses of treatment while he was under Dr. G.'s care.In October 2012, the Veteran was afforded a VA examination with a VA physician.  The physician reviewed the Veteran's medical history, claims file, and also considered the Veteran's lay accounts of his lumbosacral spine disability.  The physician also provided a physical examination.  The physician noted that the Veteran reported flare-ups that cause severe pain at times, inhibiting walking, bending, or stooping.  However, the Veteran qualified this account of flare-ups by reporting that after Dr. G.'s surgery, mentioned above, he has been able to walk without pain as well as stoop and bend with a modicum of discomfort.

Upon physical examination, forward flexion was to 75 degrees, with objective evidence of pain at 75 degrees; extension was to 15 degrees, with objective evidence of pain at 15 degrees; right lateral flexion was to 20 degrees, with objective evidence of pain at 20 degrees; left lateral flexion was to 20 degrees, with objective evidence of pain at 20 degrees; right lateral rotation was to 30 degrees or greater, with objective evidence of pain at 30 degrees or greater; and left lateral rotation was to 30 degrees or greater, with objective evidence of pain at 30 degrees or greater.  The Veteran was able to perform repetitive use testing.  After three repetitions, forward flexion was to 75 degrees; extension was to 15 degrees; left lateral flexion was to 20 degrees; right lateral rotation was to 30 degrees or greater; and left lateral rotation was to 30 degrees or greater.

As to functional loss, the Veteran had loss in range of motion after repetitive use-testing; however, he had no functional loss or impairment of his thoracolumbar spine.  The physician reported that there was no pain and muscle spasm-pain on palpation or effect of muscle spasm on gait.  The Veteran had no guarding or muscle spasm of his thoracolumbar spine.  All muscle strength testing yielded normal results and there was no muscle atrophy.  Reflex and sensory examinations yielded normal results. Results of the straight leg raising test were negative as to both the right and the left.  The Veteran displayed no radicular pain or any signs of radiculopathy.  Also, the physician found no additional neurological abnormalities.  IVDS was not reported, and the Veteran did not rely upon an assistive device.  Furthermore, there were no remaining functional impairments of the extremities noted.  The physician opined that the Veteran's lumbosacral spine disability did not impact his ability to work.  In concluding remarks, the physician opined that the Veteran's diagnosis had changed, illustrative of progressive degenerative disc disease.

In November 2012, the Veteran submitted a letter in which he complained about not receiving adequate information about an examination.  He wrote that VA had not communicated with him effectively.

In January 2013, the Veteran submitted a copy of a letter that he sent to the VA physician who performed the October 2012 examination.  He expressed dissatisfaction at the findings in the physician's opinion, specifically contending that the reflex tests performed provided insufficient data to measure the degree of his disability.  In this letter, he also requested that he be afforded an examination with a non-VA affiliated physician.

In September 2015, the Veteran submitted a copy of a complaint that he send to his Congressional Representative.  In pertinent part, he reported that VA had not evaluated his lumbosacral spine disability properly.  He also conveyed the history of this disability, including mention of Dr. G.'s treatment.

In February 2017, the Veteran was afforded a VA examination with a VA physician.  The physician reviewed the Veteran's medical history, claims file, and considered the Veteran's lay accounts of his lumbosacral spine disability.  The physician also provided a physical examination.  The physician provided initial assessments of degenerative joint disease of the lumbosacral spine and spinal stenosis.

Upon physical examination, there were neither flare-ups nor functional impairment of the thoracolumbar spine.  Forward flexion was to 90 degrees; extension was to 20 degrees; right lateral flexion was to 30 degrees; left lateral flexion was to 30 degrees; right lateral rotation was to 30 degrees; and left lateral rotation was to 30 degrees.  Range of motion, according to the physician, did not contribute to functional loss.  Neither pain with weight bearing nor localized tenderness on palpation of the joints or associated soft tissues of the thoracolumbar spine was present.  The Veteran was able to perform repetitive use testing after three repetitions, for which there were no changes in range of motion.  Pain, weakness, fatigability or incoordination did not significantly limit functional ability after repeated use.  Guarding and muscle spasm were not present.  In muscle strength testing, the Veteran was rated 5/5 as to bilateral hip flexion, knee extension, ankle plantar flexion; ankle dorsiflexion, and great toe extension.  Reflex examination, sensory examination, and straight leg testing yielded completely normal results.  There was no ankylosis of the spine.  The Veteran exhibited no other neurological abnormalities, and, moreover, IVDS was not present.  The Veteran did not use an assistive device.  The physician reported that there were no additional functional impairments of the extremities.  As to Correia, the physician opined that there was no evidence of pain on passive motion testing; no evidence of pain when the joint was used in non-weight bearing; and oppositional joint testing was not possible.

Arthritis was reported and imaging studies were available.  Specifically, a lumbar spine x-ray imaging study was conducted.  The radiologist provided an impression of rotary levoscoliosis of the lumbar spine with new posterior fusion hardware seen spanning the L3-L5 levels.

Finally, as an overall evaluation, the physician opined that the Veteran's service-connected degenerative joint disease of the lumbosacral spine was stable. 

Upon review of the evidence of record, the Board concludes that the evidence of record does not warrant a disability rating in excess of 20 percent for the Veteran's service-connected lumbosacral spine disability.  The current evaluation contemplates pain on motion and is consistent with forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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.  In order to warrant a higher rating, there must be the functional equivalent of limitation of flexion to 30 degrees.  See DeLuca, supra.  Separate ratings may be assigned for neurologic deficits.

The Veteran is competent to report his symptoms and observations of level of dysfunction.  See Layno, 6 Vet. App. 465, 466, 369-70.  Nevertheless, determining the severity of a lumbosacral spine disability must also be weighed with clinical observations.  See Jandreau v. Nicholson, 492 F.3d at 1372; Layno, 6 Vet. App. at 469-70. 

Moreover, the Veteran is competent to report that he has pain and that his movement is restricted in motion.  However, far more probative and credible are the repeated examinations, prepared by professionals, disclosing that remaining functional flexion is better than 30 degrees.

As discussed above, an increased disability rating for the Veteran's lumbosacral spine disability requires forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.  Range of motion testing performed during the period under appeal did not report the Veteran's forward flexion of the thoracolumbar spine was 30 degrees or less at any time.  Moreover, the examination reports during the period under appeal provided no findings of favorable ankylosis of the entire thoracolumbar spine.

The evidence of record does show that the Veteran experienced pain, including mechanical pain, especially with prolonged standing and walking.  However, as discussed above, there were no medical findings as to additional pain limiting flexion to 30 degrees or less.  See Mitchell, supra.  The October 2012 VA physician did note that the Veteran reported that he experiences pain, sometimes characterized as severe, during flare-ups; however, the physician did not indicate that this resulted in a functional loss.  See DeLuca, supra.  Moreover, the Veteran told the physician that after Dr. G.'s surgical intervention his inhibiting flare-up pain diminished substantially.  As discussed above, the February 2017 VA physician reported that Correia considerations also yielded no additional evidence of pain or loss.  Correia, supra.

The weight of the credible and probative evidence demonstrates that the Veteran's lumbosacral disability spine does not warrant a disability rating in excess of 20 percent.  In addition, there is no evidence of neurologic deficits that would warrant a separate evaluation.  As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to a disability rating in excess of 20 percent for low back pain with degenerative disc disease of the lumbosacral spine is denied.


____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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