Citation Nr: 0724498	
Decision Date: 08/08/07    Archive Date: 08/20/07

DOCKET NO.  06-03 213	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Indianapolis, Indiana


THE ISSUES

1.  Entitlement to service connection for schizophrenia, 
paranoid type, and depressive disorder as secondary to the 
veteran's service-connected spine disability.

2.  Entitlement to an increased rating for service-connected 
residuals of compression fracture at T-7 with segmental 
kyphosis, currently evaluated as 30 percent disabling.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Mark Vichich, Associate Counsel


INTRODUCTION

The veteran served on active duty from February 1989 to March 
1990.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from November 2004 and May 2005 rating 
decisions of the Department of Veterans Affairs (VA) Regional 
Office (RO) in Indianapolis, Indiana.  

In the veteran's VA Form 9, dated in February 2006, he stated 
that his back disability should be rated at 30 percent 
disabling because his disability more closely resembled the 
criteria for such a disability.  Subsequently, in a rating 
decision dated in February 2006, the RO increased the 
veteran's back disability rating from 20 to 30 percent.  

At the veteran's videoconference hearing in June 2007, he 
asserted that his back disability met the criteria for a 40 
percent rating and submitted evidence in support of this 
contention.  

The Board finds that notwithstanding that the veteran 
previously asserted that he was entitled to a 30 percent 
rating for his service-connected residuals of compression 
fracture at T-7 with segmental kyphosis and that the RO 
subsequently granted such a rating, he has not withdrawn his 
appeal because he did not express such an intent in writing 
or on the record at his hearing.  See 38 C.F.R. § 20.204 
(2006).  The issue, therefore, is presently before the Board.  

Before this case was certified to the Board, the RO received 
additional evidence pertaining to the veteran's back 
disability in the form of VAMC treatment records.  The RO did 
not issue a supplemental statement of the case (SSOC) 
indicating that it had reviewed this evidence.  The Board 
does not find that a remand is necessary, however, because 
for reasons discussed more fully below, the Board is granting 
the veteran's claim in its entirety.


FINDINGS OF FACT

1.  The veteran has been notified of the evidence necessary 
to substantiate his claim, and all relevant evidence 
necessary for an equitable disposition of this appeal has 
been obtained.  

2.  The competent medical evidence does not link the 
veteran's schizophrenia to his service-connected spine 
disability.

3.  The competent medical evidence links the veteran's major 
depressive disorder to his service-connected spine 
disability.

4.  The competent medical evidence shows that the veteran's 
spine disability is marked by forward flexion of the 
thoracolumbar spine limited to 30 degrees.


CONCLUSIONS OF LAW

1.  Schizophrenia, paranoid type, is not proximately due to 
the service-connected spine disability.  38 U.S.C.A. §§ 1110, 
5103, 5103A (West 2002 & Supp. 2006); 38 C.F.R §§ 3.159, 
3.310 (2006).  

2.  Major depressive disorder is proximately due to the 
service-connected spine disability.  38 U.S.C.A. §§ 1110, 
5103, 5103A (West 2002 & Supp. 2006); 38 C.F.R §§ 3.159, 
3.310 (2006).  

3.  The schedular criteria for a disability rating of 40 
percent for service-connected low residuals of compression 
fracture at T-7 with segmental kyphosis have been met.  
38 U.S.C.A. §§ 1155, 5107, 5103, 5103A (West 2002 & Supp. 
2006); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 
4.71a, Diagnostic Code 5241 (2006).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) imposes 
obligations on VA with respect to its duty to notify and 
assist a claimant in developing a claim.  38 U.S.C.A. §§ 
5103, 5103A (West 2002 & Supp. 2006); 38 C.F.R. § 3.159 
(2006).    Under the VCAA, upon receipt of a complete or 
substantially complete application for benefits, VA is 
required to notify the veteran and his representative, if 
any, of any information and medical or lay evidence necessary 
to substantiate the claim.  The United States Court of 
Appeals for Veterans Claims (hereinafter the Court) has held 
that these notice requirements apply to all five elements of 
a service connection claim, which include: (1) veteran 
status; (2) existence of a disability; (3) a connection 
between the veteran's service and the disability; (4) degree 
of disability; and (5) effective date of the disability.  See 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

VA law and regulations also indicate that part of notifying a 
claimant of what is needed to substantiate a claim includes 
notification as to what information and evidence VA will seek 
to provide and what evidence the claimant is expected to 
provide.  Further, VA must ask the claimant to provide any 
evidence in her or his possession that pertains to the claim.  
38 U.S.C.A. § 5103 (West 2002 & Supp. 2006); 38 C.F.R. §§ 
3.159(a)-(c) (2006).  VCAA notice must be provided to a 
claimant before the initial unfavorable agency of original 
jurisdiction (AOJ) decision on a claim.  Pelegrini v. 
Principi, 18 Vet. App. 112, 120 (2004).    

The Board finds that the requirements of the VCAA have been 
met and that VA has no further duty prior to Board 
adjudication.  Prior to initial adjudication of the veteran's 
claim for service connection for psychiatric disabilities, in 
correspondence dated in March 2005, the RO advised the 
veteran of what the evidence must show to establish 
entitlement to service connection for disabilities claimed as 
secondary to service-connected disabilities.  The RO advised 
the veteran of VA's duties under the VCAA and the delegation 
of responsibility between VA and the veteran in procuring the 
evidence relevant to the claim, including which portion of 
the information and evidence necessary to substantiate the 
claim was to be provided by the veteran and which portion VA 
would attempt to obtain on behalf of the veteran.  The RO 
also requested that the veteran send any evidence in his 
possession that pertained to the claim.  

The RO provided notice with respect to the residuals of 
compression fracture at T-7 with segmental kyphosis issue in 
correspondence dated in December 2005.  In that letter, the 
RO informed the veteran of what was necessary to support his 
claim for a higher rating for his service-connected spine 
disability.  The content of this letter was otherwise 
identical to the earlier VCAA notice.

In correspondence dated in March 2006, the RO informed the 
veteran that when service connection is granted, a disability 
rating and effective date of the award is assigned.  The RO 
also explained how the disability rating and effective date 
are determined.  The Board finds that in issuing this letter, 
the RO has satisfied the requirements of Dingess/Hartman.

Finally, the Board also finds that the RO has satisfied VA's 
duty to assist.  The RO has obtained the veteran's service 
medical records, VA Medical Center (VAMC) treatment records, 
and all private medical records that the veteran requested.  
The RO also provided the veteran with VA examinations in 
March 2005 and January 2006.  At the RO's request, the VAMC 
scheduled the veteran for a VA mental disorders examination 
in December 2006, but the veteran failed to report.  As noted 
above, the veteran also had the opportunity to present 
testimony to the undersigned Veterans Law Judge at a 
videoconference hearing in June 2007.  

The veteran has not made the RO or the Board aware of any 
other evidence relevant to his appeal and no further 
development is required to comply with the duty to assist the 
veteran in developing the facts pertinent to his claim.  
Accordingly, the Board will proceed with appellate review.


II.  Service Connection for Schizophrenia and Depressive 
Disorder

Legal Criteria

Service connection may be established on a secondary basis 
for a disability that is proximately due to or the result of 
a service-connected disease or injury.  38 C.F.R. § 3.310(a) 
(2006).  Establishing service-connection on a secondary basis 
requires evidence sufficient to show (1) that a current 
disability exists and (2) that the current disability was 
either (a) caused by or (b) aggravated by a service-connected 
disability.  See 38 C.F.R. § 3.310(a) (2006); see also Allen 
v. Brown, 7 Vet. App. 439, 448 (1995) (en banc) (providing 
that secondary service connection may also be granted for the 
degree of aggravation to a nonservice-connected disorder 
which is proximately due to or the result of a service-
connected disorder) reconciling Leopoldo v. Brown, 4 Vet. 
App. 216 (1993) and Tobin v. Derwinski, 2 Vet. App. 34 
(1991). 

Analysis

The veteran is seeking a grant of service connection for 
schizophrenia and major depressive disorder as secondary to 
his service-connected spine disability.  The Board has 
reviewed all of the evidence in the claims file, the most 
pertinent of which consists of treatment records from Dr. 
D.K., VAMC treatment records, and a VA examination report, 
dated in March 2005.

The treatment records from private practice psychiatrist, Dr. 
D.K., reflect diagnoses of both schizophrenia and major 
depressive disorder pursuant to DSM-IV criteria.  Of these 
records, which were dated from March 2002 through September 
2004, a letter dated in August 2004 is particularly relevant.  
In that letter, Dr. D.K. explained that in his opinion, the 
veteran's diagnoses were more likely than not secondary to 
his service-connected residuals of the compression fracture 
of T-7.  

Dr. D.K. explained that he had based his opinion on the 
veteran's presentation of symptoms such as paranoid 
delusional thinking, disorganization of his thinking, and a 
deterioration of his level of functioning when the veteran 
first saw him in March 2002.  Dr. D.K. also stated that the 
veteran had been placed on continuous sick leave since 
January 2003 to the present because of his back.  The pain 
and limitation of functioning associated with the injury 
sustained to the veteran's back, according to Dr. D.K., had 
been a contributing factor in the development and 
exacerbation of his psychiatric problems, including 
delusional thinking and depression symptoms.  

The RO declined to grant service connection for the veteran's 
claimed psychiatric disabilities based on Dr. D.K.'s opinion 
alone.  The RO reasoned that Dr. D.K.'s opinion conflicted 
with the Diagnostic and Statistical Manual of Mental 
Disorders, which stated that schizophrenia was not due to the 
direct physiological effects of a substance or a general 
medical condition.  Diagnostic and Statistical Manual of 
Mental Disorders 298 (4th Ed., Text Revision) (DSM-IV).

The RO provided the veteran with a VA examination for the 
purpose of clarifying whether this issue.  In a VA 
examination report, dated in March 2005, Dr. G.V. confirmed 
the diagnoses of schizophrenia and depressive disorder.  
Regarding the schizophrenia, Dr. G.V. concluded that it was 
not due to his service-connected residuals of compression 
fracture of T-7.  

First, Dr. G.V. explained that the veteran's medical history, 
as obtained from reviewing his claims file and interviewing 
him, revealed personality traits as a teenager and young 
adult consistent with his eventual development of 
schizophrenia.  Dr. G.V. stated that the veteran's own 
statements during the interview regarding his signs and 
symptoms prior to and during the initial period of his 
psychiatric treatment in 2002 through 2004 also supported the 
typical pattern of males developing schizophrenia in their 
20's.  

Second, Dr. G.V. explained that schizophrenia was not seen to 
result from direct physiological effects of a general medical 
condition, such as a compression fracture, but rather out of 
a general disturbance of a patient's cerebral regions and 
neurotransmitter systems.  Dr. G.V. cited DSM-IV as authority 
for this conclusion.  Dr. G.V. also stated that research did 
not show that compression fractures could lead to the 
cerebral dysfunction seen as most closely associated with 
schizophrenia.  Dr. G.V. concluded that the veteran would 
have developed schizophrenia even if he had not suffered the 
compression fracture of T-7.

The Board finds the evidence to be against granting service 
connection for schizophrenia.  Although it appeared from the 
records submitted that Dr. D.K. had substantial knowledge of 
the veteran's condition (Dr. D.K. saw the veteran on numerous 
occasions over a period of over two years), the Board finds 
Dr. G.V.'s opinion to be more probative.  Dr. G.V. discussed 
possible etiologies of schizophrenia and explained why the 
veteran's pre-service history resembled the typical pattern 
for schizophrenia.  Dr. G.V. also considered the veteran's 
history as found in the claims file in formulating his 
opinion.  

Dr. D.K., on the other hand, did not include a discussion of 
the veteran's pre-service history.  It is also not clear that 
he reviewed the veteran's claims file.  Instead, it appears 
that he relied on history as reported by the veteran.  
Finally, Dr. D.K. cited no authority, such as peer-reviewed 
literature, confirming that schizophrenia could be related to 
an injury such as a spine fracture.  For these reasons the 
Board finds Dr. G.V.'s opinion to be more probative and 
accordingly, gives it greater weight.  

In finding that the medical evidence does not support 
granting service connection for schizophrenia, the Board does 
find, however, that the medical evidence supports granting 
service connection for major depression.  The only evidence 
pertaining to this disorder is found in the treatment records 
and letter from Dr. D.K.  As noted above, it is clear that 
Dr. D.K. spent a great deal of time with the veteran and 
thus, had a reasonable amount of information on which to base 
his opinion.  Although Dr. G.V. did not link depression to 
the spine fracture, he did not provide an opinion weighing 
against finding a link between the two either.  As there 
exists a medical opinion linking the two, and there are no 
opinions to the contrary, the Board finds that service 
connection should be granted for major depressive disorder.    





III.  Increased Rating for Residuals of Compression Fracture 
at T-7

Legal Criteria

Disability ratings are determined by applying the criteria 
set forth in VA's Schedule for Rating Disabilities, which is 
based on the average impairment of earning capacity.  38 
U.S.C.A. § 1155 (West 2002 & Supp. 2006); 38 C.F.R. § 4.1 
(2006).  Where an increase in an existing disability rating 
based on established entitlement to compensation is at issue, 
the present level of disability is the primary concern.  
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

Individual disabilities are assigned separate diagnostic 
codes.  If two evaluations are potentially applicable, the 
higher evaluation will be assigned if the disability picture 
more nearly approximates the criteria required for that 
rating; otherwise the lower evaluation will be assigned.  38 
C.F.R. § 4.7 (2006).  All benefit of the doubt will be 
resolved in the veteran's favor.  38 C.F.R. § 4.3 (2006).

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 (2006).  It is essential that 
the examination on which ratings are based adequately portray 
the anatomical damage, and the functional loss, with respect 
to all these elements.  Id.  The functional loss may be due 
to absence of part, or all, of the necessary bones, joints 
and muscles, or associated structures, or to deformity, 
adhesions, defective innervation, or other pathology, or it 
may be due to pain, supported by adequate pathology and 
evidenced by visible behavior of the claimant undertaking the 
motion.  Id.  Weakness is as important as limitation of 
motion, and a part which becomes painful on use must be 
regarded as seriously disabled.  Id.  Painful, unstable, or 
malaligned joints, due to healed injury, are entitled to at 
least the minimum compensable rating for the joint.  38 
C.F.R. § 4.59 (2006).  The factors involved in evaluating and 
rating disabilities of the joints include weakness, 
fatigability, incoordination, restricted or excess movement 
of the joint, or pain on movement.  38 C.F.R. § 4.45 (2006).

VA regulations, set forth at 38 C.F.R. §§ 4.40, 4.45, and 
4.59 provide for consideration of a functional impairment due 
to pain on motion when evaluating the severity of a 
musculoskeletal disability.  The United States Court of 
Appeals for Veterans Claims (Court) has held that a higher 
rating can be based on "greater limitation of motion due to 
pain on use." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  
However, any such functional loss must be "supported by 
adequate pathology and evidenced by the visible behavior of 
the claimant."  See 38 C.F.R. 
§ 4.40 (2006).

All disabilities of the thoracolumbar spine are to be rated 
under the General Rating Formula for Diseases and Injuries of 
the Spine (General Rating Formula), except for intervertebral 
disc syndrome, which may be evaluated under either the 
General Rating Formula or the Formula for Rating 
Intervertebral Disc Syndrome Based on Incapacitating 
Episodes.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 
(2006).  

Under General Rating Formula, a 40 percent rating requires 
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.  38 C.F.R. § 4.71a, General Rating Formula, (2006).  A 
50 percent rating requires evidence of unfavorable ankylosis 
of the entire thoracolumbar spine.  Id.  

Any associated 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, Note (1) (2006).        

Analysis 

The evidence shows that the veteran's service-connected spine 
disability meets the criteria for a 40 percent rating.  As a 
preliminary matter, the Board notes that the veteran is not 
service-connected for intervertebral disc syndrome.  
Consequently, the Board will consider only the General Rating 
Formula and not the Formula for Rating Intervertebral Disc 
Syndrome Based on Incapacitating Episodes.

The medical evidence includes a statement from the veteran's 
primary care physician, Dr. K.R., dated in January 2006, in 
which Dr. K.R. stated that the veteran's thoracolumbar spine 
is limited to 30 degrees of flexion due to residuals of his 
compression fracture of T-7.  Dr. K.R.'s statement included 
no other examination findings or explanation.  The competent 
medical evidence also includes a January 2006 VA examination 
report, in which Dr. A.K. stated that forward flexion of the 
thoracolumbar spine was to 80 degrees.  Dr. A.K. also found 
that repetitive movement produced increased pain, easy 
fatigability, lack of endurance, and further decrease in 
motion by 5 degrees.  

It difficult to reconcile these two opinions given that they 
were dated only weeks apart.  However, when giving the 
benefit of the doubt to the veteran the evidence weighs in 
his favor.  Although Dr. A.K. found forward flexion to be 
limited to no more than 75 degrees even when considering the 
extent to which pain, fatigability, and lack of endurance 
contributed to this limitation, he also described the 
veteran's range of motion as "painful and limited."  Dr. 
A.K. did not indicate whether the pain existed throughout the 
entire range of motion or only at 75 degrees.  

Dr. K.R.'s opinion, while lacking extensive analysis or 
explanation, is facially valid.  Dr. K.R. referenced the 
specific injury for which the veteran is service-connected 
and stated that this injury resulted in the aforementioned 
limited range of motion.  There is nothing in the opinion to 
indicate that it is without credibility and the Board finds 
that it is no less probative than the VA examination report.  
Thus, there exists an adequate basis to grant a 40 percent 
rating.    

In granting a 40 percent rating, the Board finds that the 
disability does not meet the criteria for the higher 50 
percent rating.  The competent medical evidence does not show 
that the thoracolumbar spine is ankylosed in an unfavorable 
position.  To the contrary, the medical evidence is 
completely negative for ankylosis of any part of the spine.  

The Board has also considered whether a separate rating for 
neurologic manifestations is warranted, but finds that it is 
not.  The January 2006 VA examination report was negative for 
complaints or findings of neurologic abnormalities.  
Moreover, in a primary care treatment note, dated in February 
2003, Dr. H.K. specifically noted that there were no 
neuropathic components associated with the veteran's spine 
disability.

Lastly, the Board notes that there is no evidence of record 
that the veteran's service-connected residuals of his 
compression fracture of T-7 cause marked interference with 
employment (i.e., beyond that already contemplated in the 
assigned evaluation), or necessitated any frequent period of 
hospitalization, such that application of the regular 
schedular standards is rendered impracticable.  The Board 
emphasizes that the percentage ratings assigned by the VA 
Schedule for Rating Disabilities represent the average 
impairment in earning capacity resulting from a service-
connected disability.  38 C.F.R. § 4.1 (2006).  In the 
instant case, to the extent that the veteran's service-
connected residuals of his compression fracture of T-7 
interfere with his employability, the currently assigned 
rating adequately contemplates such interference, and there 
is no evidentiary basis in the record for a higher rating on 
an extraschedular basis.  Hence, the Board is not required to 
remand this matter to the RO for the procedural actions 
outlined in 38 C.F.R. § 3.321(b)(1) (2006) for assignment of 
an extraschedular evaluation.  Bagwell v. Brown, 9 Vet. App. 
337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 
(1996).















ORDER

1.  Service connection for schizophrenia, paranoid type, is 
denied.

2.  Service connection for major depressive disorder is 
granted.

3.  A 40 percent rating for residuals of compression fracture 
at T-7 with segmental kyphosis is granted.



____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs