Citation Nr: 1754212	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  10-44 656	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to a disability rating in excess of 20 percent for a thoracolumbar spine disability.  


REPRESENTATION

Veteran represented by:  Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and her daughter


ATTORNEY FOR THE BOARD

Michael Duffy, Associate Counsel 

INTRODUCTION

The Veteran served on active duty from February 1982 to September 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a hearing in November 2016 before the undersigned Veterans Law Judge (VLJ).  A transcript of this hearing is contained in the record.

This matter was remanded in February 2017 for further development.


FINDINGS OF FACT

1.  The preponderance of the evidence shows that the Veteran had forward flexion of the thoracolumbar spine greater than 30 degrees during the period at issue.  

2.  The preponderance of the evidence is against a finding that the Veteran experienced incapacitating episodes of Intervertebral Disc Syndrome (IVDS) requiring a prescription for bed rest and having a total duration of at least 4 weeks within twelve months. 


CONCLUSION OF LAW

The criteria for a disability rating in excess of 20 percent for a thoracolumbar spine disability have not been met.  38 U.S.C. §§ 1101, 1110, 1113 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, DCs 5235-5243 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  

VA's duty to notify was satisfied by a letter in January 2009.  See 38 U.S.C. §§ 5102, 5103, 5103A (2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

Neither the Veteran nor her representative has 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 duty to assist argument).  

In an October 2017 Informal Hearing Presentation, the Veteran's representative noted that the actions requested in the Board's February 2017 remand order have been completed.  The Board finds there has been substantial compliance with its February 2017 remand directives.   See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.).   

Entitlement to an Increased Disability Rating for the Thoracolumbar Spine

Rating Principles: The Spine

The spine is rated under 38 C.F.R. § 4.71a, DCs 5235-5243 according to a General Rating Formula for Disease and Injuries of the Spine (General Formula) unless DC 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes (IVDS Formula).  For purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  Schedular disability ratings are assigned for the spine from 10 percent to 100 percent according to the formulas as follows:

Under the General Formula, a 100 percent rating contemplates unfavorable ankylosis of the entire spine.  There is no equivalent rating under the IVDS Formula.

Under the IVDS Formula, a 60 percent rating contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  There is no equivalent rating under the General Formula. 

Under the General Formula, a 50 percent rating contemplates unfavorable ankylosis of the entire thoracolumbar spine.  There is no equivalent rating under the IVDS Formula.

Under the General Formula, a 40 percent rating contemplates unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  Alternatively, under the IVDS Formula, a 40 percent rating contemplates incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  

Under the General Formula, a 30 percent rating contemplates forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  There is no equivalent rating under the IVDS Formula.

Under the General Formula, a 20 percent rating contemplates 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.  Alternatively, under the IVDS Formula, a 20 percent rating contemplates incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.

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).  Although pain may cause functional loss, pain itself does not constitute functional loss.  Rather, 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).  38 C.F.R. § 4.59 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).  Associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code.  See 38 C.F.R. § 4.71a (General Formula, Note 1).  




Analysis: Rating the Thoracolumbar Spine

The Veteran's appeal stems from a December 2008 statement.  The Veteran indicated that her disability got progressively worse over the years and was having a negative impact on her daily living.  She noted she experienced pain doing simple tasks such as ironing clothes, washing dishes, and cleaning the house.  She noted she wakes up in the middle of the night unable to sleep due to a severe throbbing and aching pain that goes throughout her entire spine.  She reported that it was sometimes difficult to get out of bed due to the stiffness as well as the soreness.  She reported that her range of motion was very limited and that prolonged standing or sitting caused severe pain as well as muscle spasms.  She also reported radiating pain and weakness in both legs as well as tenderness and spams in the entire spine.  She noted that her symptoms made driving very difficult and that on average she missed anywhere from three to five days a month from work due to the condition.  The Board notes the record also contains several lay statements from friends and family members of the Veteran, who indicated they observed the Veteran exhibiting such difficulties.  

The January 2009 VA examination revealed forward flexion of the thoracolumbar spine was limited to 45 degrees considering the DeLuca factors.  There was no muscle spasm.  There was no ankylosis.  Sensory and motor function tests of the lower extremities were normal, and the examiner did not find neurological symptoms on examination although a straight leg raise test was positive bilaterally.  There was no bladder or bowel dysfunction.  The Veteran's x-rays were noted to be negative.  The examiner noted that the Veteran had a normal gait and posture during the examination, and the examiner also noted the Veteran's reports of daily functional limitations including due to pain.  The Veteran was diagnosed with lumbar strain only, and the examiner noted that there was no pathology to render diagnoses of periostitis of the thoracic spine or scoliosis.  

During an April 2016 VA spine examination, the Veteran was noted to have forward flexion of the thoracolumbar spine to 80 degrees, with no loss of motion on repeat testing considering the DeLuca and Mitchell factors.  Additionally, the April 2016 examiner noted that the examination was being provided during a flare-up but found no significant additional limitations due to pain, weakness, fatigability, or incoordination.  The Veteran's reflex and sensory examinations were normal.  In contrast to the earlier examinations, the April 2016 examination revealed negative straight leg raise tests.  There were no findings of radicular pain or any other signs or symptoms due to radiculopathy.  The examiner additionally noted the Veteran did not have IVDS and did not diagnose any associated neurological disorders.  The AOJ reviewed this evidence and found it did not support a finding of IVDS or reduced forward flexion to 30 degrees or less consistent with a 40 percent or higher rating under the General Formula.  

However, at the November 2016 Board hearing, the Veteran indicated that she was entitled to a rating in excess of 20 percent for her spine disabilities, and that she had additional neurological impairments as a result of her spine disabilities (specifically, sciatica/radiculopathy).  The Veteran testified that she has been receiving treatment for her spine conditions from a private physician, Dr. M.T.W., and had not recently received VA care.  She additionally stated that her symptoms had increased since her last VA examination in April 2016, and that she had been sent to physical therapy in the interim due to the increased symptoms.  Following the Board hearing, the Veteran provided copies of private treatment records and a December 2016 disability benefits questionnaire (DBQ) filled out by her private physician (Dr. M.T.W.).

The December 2016 DBQ noted that the Veteran had forward flexion of her thoracolumbar spine to 30 degrees, with additional loss of motion to 20 degrees after repeat testing.  Straight leg raising test results were positive bilaterally.  The Veteran was also noted to have mild left lower extremity radiculopathy and moderate right lower extremity radiculopathy.  However, her objective sensory evaluation was normal.  It was noted that the Veteran was unable to walk for greater than 75 feet without experiencing significant pain, which required her to stop.  Additionally, the private physician indicated that the Veteran had IVDS resulting in incapacitating episodes of more than two weeks but less than four weeks in the prior twelve months.  

The Board notes that the records provided from Dr. M.T.W. dated from 2012 to 2016 did not contain any indication of physician prescribed bed rest to support the December 2016 DBQ finding.  The Board noted that the Veteran was assessed as recently as October 2016 as having normal sensation, strength and reflexes of the lower extremities.  See October 2016 progress notes from Dr. M.T.W.  

The Board also finds some discrepancy in the record regarding the physical limitations the Veteran has as a result of her back pain.  For example, the Veteran originally reported an inability to stand, sit, or walk for prolonged periods of time, and stated her back pain interferes with her ability to work.  However, during the Board hearing, the Veteran's daughter testified that in recent weeks her mother had slowed down and was not "on her Bowflex Treadclimber like she'll do when she's not doing her activities as normal."  Her daughter also testified that over the years her mother's back could cause her to lay on the couch on a heating pad, and not be able to go upstairs because of back pain.  This was noted as a difference in her mobility because "she's normally very active."  A May 2012 physical therapy record noted the Veteran participated in fitness activities such as "Insanity Workouts."  

Given the large discrepancy in examination findings between April and December 2016, the Board remanded this matter in February 2017 for an additional examination and to obtain any outstanding relevant treatment records.  Although VA sent the Veteran a letter in March 2017 requesting that she submit a release for VA to obtain current records from Dr. M.T.W., she did not submit such release, or provide the records herself.

The Board notes that the findings in the April 2017 VA spine examination are substantially similar to the prior VA examiners' findings to the extent that they show that the Veteran has greater than 30 degrees forward flexion in the thoracolumbar spine (50 degrees considering DeLuca and Mitchell factors), which indicates that the Veteran's disability picture for the thoracolumbar spine more nearly approximates the current 20 percent disability rating under the General Formula.  The examiner noted the Veteran's subjective complaints in regard to increased pain with extended periods of sitting, standing, lifting more than 10 pounds, and performing postural functions.  The Veteran reported pain in her low back more on right side that on occasion radiated to left lateral thigh sometimes to the calf and resolves.  However, the examiner found that the Veteran did not have IVDS requiring bed rest, which is consistent with the lack of such findings in the treatment records.  Sensory examination was normal and straight leg testing was negative bilaterally.  Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy, nor did she have other signs of neurological impairment.  The Veteran reports performing well at work with no significant financial impact due to missed work days.  

Ultimately, the Board affords greater probative weight to the VA examiners' opinions than the December 2016 private examiner's opinion because the VA examiners' opinions are supported by the treatment records, which do not reveal a prescription for bed rest or functional range of motion in the thoracolumbar spine limited to 30 degrees or less.  

The Board considered whether the record would support a finding of additional compensable ratings for associated objective neurologic abnormalities evaluated separately under an appropriate diagnostic code.  See 38 C.F.R. § 4.71a (General Formula, Note 1).  However, as noted above, the examinations of record did not objectively confirm the Veteran experienced significant neurological manifestations during the period at issue.  The April 2017 VA examiner specifically noted there was no objective evidence in the record confirming radiculopathy or other persistent neurological symptoms.  The examiner found that the Veteran's report of shooting pain is consistent with a temporary irritation of a sensory nerve that resolves.  Ultimately, while the Board acknowledges there is some subjective evidence of neurological manifestations during the period at issue including radiating pain, the Board finds that the examinations and treatment records do not confirm such manifestations occurred with the frequency, duration, and severity contemplated by a compensable rating.  38 C.F.R. § 4.124a.  Therefore, the Board finds that the preponderance of the evidence is against a finding of additional compensable ratings for neurological manifestations during the period at issue.  

The Board considered several lay statements in the record from the Veteran's friends and family members in support of the claim.  The Board finds the lay statements reporting the Veteran exhibited signs of significant fatigue and pain to be credible.  However, they do not establish that the Veteran's disability picture more nearly approximates a 40 percent rating based on a loss of range of motion in the thoracolumbar spine under the General Formula, and they do not establish a prescription for bed rest due to IVDS.  To the extent that the lay statements establish there Veteran was functionally limited by pain and other symptoms, the VA examiners considered such limitations in their measurements consistent with Deluca and Mitchell.  Moreover, even if the Board accepted the December 2016 private examiner's findings in regard to IVDS, a 20 percent rating under the IVDS formula contemplates the finding of incapacitating episodes of more than two weeks but less than four weeks in the prior twelve months.  

In light of the above, the Board finds that the Veteran's disability picture for the thoracolumbar spine more nearly approximates a 20 percent disability rating.  Therefore, entitlement to an increased rating must be denied.  


ORDER

Entitlement to a disability rating in excess of 20 percent for a thoracolumbar spine disability is denied.  





____________________________________________
S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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