Citation Nr: 1754227
Decision Date: 11/28/17 Archive Date: 12/07/17
DOCKET NO. 11-01 049 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey
Entitlement to an initial rating in excess of 10 percent for low back disability.
Veteran represented by: Hawaii Office of Veterans Services
WITNESS AT HEARING ON APPEAL
ATTORNEY FOR THE BOARD
K. M. Schaefer, Counsel
The Veteran served on active duty from July 1991 to November 1995.
This case comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.
In May 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge, via videoconference. A transcript of the proceeding is of record.
In June 2013, October 2014, October 2015, August 2016, and February 2017, the appeal was remanded to the RO for further development, which has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998). It now returns to the Board for appellate review.
The purpose of the February 2017 remand was to schedule another VA examination. The examination was scheduled for April 2017 at the Honolulu VA Medical Center, but the Veteran canceled the examination, indicating his desire to withdraw the claim. The RO then telephoned the Veteran to confirm his withdrawal, and he responded that he wanted to withdraw the appeal because the examination at the Honolulu VAMC would require him to fly, which he did not want to do. The RO advised him over the phone that the Veteran needed to withdraw his claim in writing and also sent the Veteran a letter advising him of the steps he needed to take to formally withdraw his appeal. No other communication was received from the Veteran regarding his withdrawal of the appeal, and the RO proceeded to attempt, unsuccessfully, to schedule a contract examination on the Veteran’s island. Consequently, the Board determines that the Veteran has not withdrawn his appeal and so will proceed to decide the appeal on the evidence of record.
FINDING OF FACT
The Veteran’s lumbar spine disability is manifested by range of motion of forward flexion to no less than 90 degrees and a combined range of motion to greater than 120 degrees, without muscle spasm or guarding or additional loss of function on repetition due to pain, weakness, fatigability, or lack of endurance.
CONCLUSIONS OF LAW
The criteria for a rating in excess of 10 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duty to Assist
The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.
The record reflects that all available pertinent treatment records, to include available post-service VA and private treatment records have been obtained. The Veteran has not identified any outstanding, existing evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Moreover, the Veteran has been provided appropriate VA examinations. As discussed above, the Veteran canceled his scheduled April 2017 VA examination because he could not travel to Honolulu. In addition, the record shows that efforts were made to schedule the examination on the Veteran’s home island, but an appropriate examiner was not available. Therefore, the Board will decide the appeal on the evidence of record. 38 C.F.R. §3.655 (2017).
Accordingly, the Board will address the merits of the claim.
II. General Legal Criteria
Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably 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. § 1155 (2012); 38 C.F.R. § 4.1 (2017).
Each disability must be considered from the point of view of the Veteran working or seeking work. See 38 C.F.R. § 4.2 (2017). 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2017).
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength2, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage and the functional loss with respect to all of these elements. 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).
The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).
The Veteran’s lumbar spine disability is rated as 10 percent disabling, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017). As relevant to the lumbar 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 assigned a 10 percent rating.
A 20 percent rating is assigned for 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 an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.
A 40 percent rating requires unfavorable ankylosis of the entire cervical spine or forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.
A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine.
A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine.
The notes applicable to the General Formula are as follows:
Note (1): Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.
Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted.
Note (4): Round each range of motion measurement to the nearest five degrees.
Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.
Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71, Diagnostic Codes 5235-5242 (2017).
A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim was filed until a final decision is made. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R.
§§ 3.102, 4.3 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
In accordance with 38 C.F.R. §§ 4.1, 4.2 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disabilities.
VA examinations were performed in connection with this claim, in June 2009, February 2015, January 2016, and November 2016. At the June 2009 VA examination, the examiner observed no deformity and found minimal tenderness to palpation over the lower portion of the lumbar spine. Range of motion measurements were forward flexion to 90 degrees or grater, extension to 25 degrees or greater, and right and left lateral flexion to 35 degrees and right and left rotation each to 45 degrees. There was objective evidence of pain at the end of extension and lateral flexion, but no further pain or loss of functionality after repetition of movement. Straight leg raise and Patrick’s test were negative bilaterally. Muscle strength was 5/5 in the lower extremities and sensation as intact. Reflexes were 2+. Gait was normal, and the Veteran did not use an assistive device. The Veteran denied having additional limitation with repetition and flare-ups and denied having had incapacitating episodes during the last twelve months. The examiner diagnosed mild lumbar spondylosis. X-rays showed mild degenerative disc disease and facet joint osteoarthritis.
At the February 2015 VA examination, forward flexion of the spine was to 90 degrees or greater. Extension, right and left lateral flexion, and right and left rotation were each to 30 degrees. There was no objective evidence of painful motion or pain on weightbearing observed. Repetitive motion did not result in further loss of range of motion. The examiner found no localized tenderness or pain to palpation or guarding or muscle spasm. Muscle strength, reflex, and sensorimotor testing were all normal. Straight leg raise testing was negative, and sensory examination was normal. The examiner found other signs associated with radiculopathy and diagnosed moderate radiculopathy of both lower extremities. The examiner stated that the Veteran does not have ankylosis or IVDS. The Veteran reported flare-ups once a month, lasting for three to nine days and inhibiting his ability to turn from side to side, but the examiner stated that the impact of the flare-ups could not be described in range of motion. The examiner diagnosed degenerative arthritis.
The January 2016 VA examiner documented subjective complaints of pain at 3-4/10 with flares of 10/10, last for nine days and limit his physical activities. The Veteran reported using a back brace, but not a cane or crutches. Range of motion measurements were forward flexion to 90 degrees or greater, extension to 20 degrees, and right lateral flexion to 30 degrees, left lateral flexion to 25 degrees, and bilateral rotation to 30 degrees or greater. There was no additional loss of function with repetition. The examiner indicated that there was pain on forward flexion, extension, and left lateral flexion and that the pain results functional loss. There was evidence of pain on weightbearing, but not of localized tenderness or pain to palpation or guarding or muscle spasm of the thoracolumbar spine. The examiner also stated that there was no evidence of pain on passive range of motion testing or on non-weight bearing testing of the back. No additional loss of function with repetition was observed. The examiner indicated that pain significantly limits functional ability with flare-ups, but that he could not describe the impact of flare-ups in range of motion without resorting to mere speculation. The functional impact of the disability was inability to sit, walk, run and or stand for prolonged periods of time without pain. Strength, reflexes, and sensorimotor testing of the bilateral lower extremities were normal. The straight leg raise test was negative, and the examiner observed no other signs or symptoms of radiculopathy. There was no ankylosis or IVDS of the spine.
In November 2016, the VA examiner documented subjective complaints of pain at 4/10 with flares of 10/10, last for nine days and limit his physical activities. Flare-ups had occurred at least three to five times in the last year. The examiner noted that the Veteran had given up surfing, but still swims at least once per week. The Veteran reported using a back brace, but not a cane or crutches. Range of motion measurements were forward flexion to 90 degrees or greater, extension to 10 degrees, and bilateral flexion and rotation to 30 degrees each. There was no additional loss of function with repetition. The examiner indicated that there was pain on forward flexion, extension, and right and left lateral flexion and that the pain results functional loss. The examiner also documented functional loss due to stiffness in the spine. There was evidence of pain on weightbearing, but not of localized tenderness or pain to palpation or guarding or muscle spasm of the thoracolumbar spine. No additional loss of function with repetition was observed. The examiner indicated that pain significantly limits functional ability with flare-ups, but stated that the impact did not include a change in range of motion. The functional impact of the disability was inability to sit, walk, run and or stand for prolonged periods of time without pain. There was no ankylosis or IVDS of the spine. The Veteran did not report for lumbar spine x-rays. The examiner diagnosed lumbar spondylosis.
VA and private treatment records of record do not reflect manifestations of the spine disability that are more severe than those documented at VA examination. In addition, the Veteran’s radicular symptoms are already separately rated, and so are not for consideration in the Board’s present assessment of the severity of the low back disability.
Thus, upon careful consideration of the evidence, the Board determines that an initial rating in excess of 10 percent is not warranted for the Veteran’s lumbar spine disability. The 10 percent rating contemplates the Veteran’s limitation of forward flexion to no less than 90 degrees with pain observed with movement. A rating in excess of 10 percent requires forward flexion to 60 degrees or less or evidence of muscle spasm or guarding causing abnormal gait or spinal contour. Neither muscle spasm nor guarding was observed at any point during the appeal period, and there was no additional functional loss with repetition of motion. The combined range of motion for the lumbar spine was not at any time 120 degrees or less. In addition, no examiner documented any additional loss of function due to pain, weakness, fatigability, or incoordination. While the Veteran experiences flare-ups, the November 2016 VA examiner explicitly stated that the flare-ups did not result in changes in range of motion. For these reasons, the Board finds that a rating in excess of 10 percent for the Veteran’s low back disability is not warranted at any time during the appeal period.
Therefore, the Board concludes that a preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s low back disability. The claim is, therefore, denied.
Entitlement to an initial rating in excess of 10 percent for a low back disability is denied.
Veterans Law Judge, Board of Veterans’ Appeals
Department of Veterans Affairs