Citation Nr: 1754162	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  11-33 494	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial rating higher than 40 percent for a low back disability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Fowler, Associate Counsel







INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from May 2006 to April 2009.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In June 2016, the Board remanded this issue for additional development, including providing the Veteran with a VA examination.  He underwent a VA examination in August 2016.  The RO substantially complied with the directives.  See Stegall v. West, 11 Vet. App. 268 (1998).  The issue is now before the Board for further appellate action.

The Board notes that since the June 2016 remand, the RO increased the Veteran's initial disability rating from 20 percent to 40 percent.  When a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains on appeal where less than the maximum benefit available is awarded.  See AB v. Brown, 6 Vet. App. 35 (1993).


FINDING OF FACT

The Veteran's thoracolumbar spine disability manifests, at worst, with flexion of 20 degrees, with pain on movement, and without unfavorable ankylosis of the entire spine or thoracolumbar spine.


CONCLUSION OF LAW

The criteria for initial rating higher than 40 percent for a low back disability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Relevant Laws and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. § 4.7.

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).  Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection.  Fenderson v. West, 12 Vet. App. 119 (1999).  


Intervertebral disc syndrome (IVDS), as well as other conditions of the spine, are to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating IDVS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.

Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 40 percent rating is warranted when the forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  To receive a rating of 50 or 100 percent, a Veteran must have unfavorable ankylosis of the entire thoracolumbar spine or the entire spine, respectively.  38 C.F.R. § 4.71a.

VA considers forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, bilaterally, normal ranges of motion of the thoracolumbar spine.  38 C.F.R. § 4.71a at Note 2 and Plate V.

The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved.  Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code.  38 C.F.R. § 4.71a, General Rating Formula.

When the rating of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors.  Those factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse.  38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).  A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80 (1997).

As the Veteran has a diagnosis of IVDS, the Board must also consider whether a higher rating may be assigned under the Formula for Rating IVDS Based on Incapacitating Episodes.  Under this formula, a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks; and a 60 percent rating is warranted if the total duration is at least six weeks.  For purposes of assigning evaluations under Code 5243, 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.  38 C.F.R. § 4.71a , Formula for Rating IVDS Based on Incapacitating Episodes, Note 1.  In this case, the Veteran has not been prescribed bed rest by a physician for a total duration of at least six weeks, and therefore the Formula for Rating IVDS is not more favorable.  

Analysis

The Veteran contends that he is entitled to an initial rating in excess of 40 percent for a low back disability.  

In May 2009, the Veteran was afforded two VA examinations.  The first examination was a general medical examination and did not conduct range of motion testing.  The examiner noted back pain, stiffness, and leg paresthesias that were aggravated by walking or bending.  The examiner specifically found that there was no ankylosis of the spine.  

At his May 2009 VA spine examination, the Veteran demonstrated forward flexion to 90 degrees and a combined range of motion of the thoracolumbar spine to 240 degrees with no objective evidence of painful motion or change following repetitive range of motion testing.  The Veteran reported a history of decreased motion, stiffness, spasm, and pain.  The examiner did not find the Veteran to have ankylosis of the thoracolumbar spine or the entire spine.  The examiner found the Veteran to have lumbar strain.

At an April 2012 examination, the Veteran demonstrated forward flexion to 45 degrees with painful motion beginning at 45 degrees and a combined range of motion of the thoracolumbar spine to 185 degrees with no additional limitations after three repetitions.  The Veteran had painful motion.  The examiner did not find the Veteran to have ankylosis of the thoracolumbar spine or the entire spine.  There were findings of localized tenderness, no guarding or muscle spasms.  There was tenderness over L2-L:5.  His muscle strength and reflexes were normal.  The Veteran reported numbness in the lower extremities and sometimes in the genitals.  The examiner found that the Veteran had radiculopathy in both lower extremities, but no other neurologic abnormalities, such as bowel or bladder problems/pathologic reflexes.  The examiner found the Veteran to have d IVDS with incapacitating episodes lasting less than one week in the past 12 months.  The examiner noted that imaging studies of the thoraolumbar spine have been performed and the images document arthritis.

In June 2012, the Veteran stated that he had a lumbar fusion on April 4, 2012, and that over the next month, he had limited mobility with use of a walker.  The Board notes that private medical records from Central Florida Regional Hospital show that the surgery took place on May 4, 2012.  

At an August 2016 examination, the Veteran demonstrated forward flexion to 20 degrees and a combined range of motion of the thoracolumbar spine to 130 degrees with no additional limitations after three repetitions.  His extension was 10 degrees, his right and left lateral flexion was 20 degrees bilaterally, and his right and left lateral flexion was 30 degrees bilaterally.  He had painful motion, including pain on weightbearing.  His strength and reflex examinations were normal.  The examiner specifically found that the Veteran did not have ankylosis of the thoracolumbar spine or the entire spine.  The examiner found the Veteran to have bilateral thoracolumbar paraspinous muscle tenderness, spasm, and guarding greater on the left all attributed to the thoracolumbar spine condition resulting in abnormal gait or abnormal spinal contour.  The examiner also diagnosed radiculopathy, and noted that no other neurologic abnormalities were present.  

The examiner diagnosed IVDS with no incapacitating episodes in the past 12 months.  The examiner noted that imaging studies of the thoraolumbar spine have been performed and the images document arthritis.  The Veteran reported flare-ups that caused him to avoid lifting more than a few pounds, stand for more than 5 minutes, or sit more than 15 minutes without shifting position.  

The Veteran's private medical records consistently note complaints of pain.  In February 2012, he stated that his quality of life had decreased due to back pain, and that he had become more sedentary.  

For the entire period, the Veteran's low back disability has not manifested as unfavorable ankylosis of the thoracolumbar spine or the entire spine.  The May 2009, April 2012, and August 2016 VA examinations specifically found the Veteran to not have ankylosis.  The Veteran retains mobility in his thoracolumbar spine and does not manifest ankylosis of any form.  See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable).

Given that the Veteran is already in receipt of the schedular maximum for limitation of motion of the lumbar spine, the DeLuca factors are not for application.  Johnston v. Brown, 10 Vet. App. 80, 87 (1997).  Further, even when considering the functional loss described by the Veteran, the medical and lay evidence of record does not show that his functional loss causes his back disability to be more closely described by the 50 percent criteria.  

Additionally, separate ratings have already been assigned for the Veteran's radiculopathy of the right and left lower extremities.  As discussed above, there are no other neurologic complications from his back disability.  

Reviewing the evidence, the Board finds that The overall disability picture for the Veteran's low back disability does not more closely approximate a 50 percent rating under the applicable Diagnostic Code.  38 C.F.R. § 4.7.  Therefore, the preponderance of the evidence is against this claim, and it must be denied. 38 C.F.R. § 4.3.  

Finally, a total disability rating based on individual unemployability (TDIU) is not raised because the Veteran does not contend, and the evidence does not show, that his low back disability renders him unemployable.  Rice v. Shinseki, 22 Vet. App. 447 (2009); Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).


ORDER

Entitlement to an initial rating higher than 40 percent for a low back disability is denied.



____________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs

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