08-34 533
08-34 533
| Board of Vet. App. | Aug 31, 2016Background
- Veteran served active duty (1982–1990; 2002–2006). Service connection for degenerative disc disease L5-S1 granted effective August 1, 2006 with an initial 10% rating.
- Administrative history: Board denied increased rating in Feb 2013; Court vacated/remanded (June 2014). Board again issued decisions; Court granted joint partial remand (June 2016) narrowing issue to period prior to Feb 12, 2015.
- Medical evidence: VA exams in Mar 2006, May 2011, Feb 2015; imaging (Aug 2008 MRI) showing DDD with protrusion and foraminal narrowing; CT showing DISH with partial ankylosis (thoracic) by 2015.
- Symptom history: chronic daily low‑back pain, monthly flare‑ups requiring rest/lying down, limited endurance on repetitive use, missing limited workdays (3–5/yr; earlier report of ~20–24 days across multiple years).
- Objective ROM findings: forward flexion 95° (2006) with marked pain/decline after repetitions; 80° (2011); 45°/10° (flexion/extension) in Feb 2015 with tenderness and limited function; functional loss on repetitive use present prior to Feb 12, 2015.
- Board concluded that, prior to Feb 12, 2015, the disability more nearly approximated the 40% criteria (forward flexion ≤30° when considering functional loss on repetitive use and flare‑ups) but did not meet ankylosis or IVDS incapacitating‑episode thresholds for higher ratings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Veteran is entitled to an initial rating >10% for L5‑S1 DDD prior to Feb 12, 2015 | Veteran contended his pain, reduced endurance on repetitive use, and flare‑ups caused greater functional loss warranting a higher rating (up to 50% or more) | VA/Board argued schedular criteria for higher ratings (ankylosis or IVDS incapacitating episodes) were not met; evidence fits within 40% when functional loss on use is considered | Board granted staged increase to 40% for period prior to Feb 12, 2015 (no higher) |
| Whether IVDS evaluation (incapacitating episodes) supports 60% rating | Veteran asserted flare‑ups/bed‑rest episodes justify IVDS‑based higher rating | VA noted no evidence of physician‑prescribed bed rest or >=6 weeks of incapacitating episodes in any 12‑month period | Held: IVDS 60% not met; reported missed work does not demonstrate required incapacitating episode duration |
| Whether ankylosis criteria (50% or 100%) are met | Veteran relied on progressive radiologic change and reported loss of motion | VA/Board relied on imaging and exams showing only partial ankylosis (thoracic) and preserved some lumbar motion | Held: unfavorable ankylosis of thoracolumbar or entire spine not present prior to Feb 12, 2015; higher ankylosis ratings denied |
| Whether extraschedular referral is required | Veteran argued symptoms (missed work, activity loss, flare‑ups) reflect exceptional disability picture | VA/Board argued symptoms are contemplated by the 40% schedular criteria and do not exhibit governing norms (marked employment interference, frequent hospitalization) | Held: No extraschedular referral warranted; 40% rating adequately contemplates the disability picture |
Key Cases Cited
- DeLuca v. Brown, 8 Vet. App. 202 (1995) (functional loss from pain and repetitive use must be considered in musculoskeletal ratings)
- Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (limits on equating painful motion directly to range‑of‑motion measurements)
- Cullen v. Shinseki, 24 Vet. App. 74 (2010) (when rating spine disabilities, Board must address additional limitation from pain, weakness, or fatigue)
- Thun v. Peake, 22 Vet. App. 111 (2008) (three‑step inquiry for extraschedular consideration)
- Fenderson v. West, 12 Vet. App. 119 (1999) (staged ratings allowed when disability severity varies over time)
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (standards for adequacy of VA medical examinations)