Citation Nr: 0810428 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 01-08 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for degenerative disc disease of the lumbar spine, with disc bulge at L5-S1, on a direct basis. 2. Entitlement to service connection for degenerative disc disease of the lumbar spine, with disc bulge at L5-S1, as secondary to service-connected disability of the right knee, which includes status-post fractures of the distal third of the tibia and proximal fibula, and status-post osteotomy of the right tibia and fibula, with autogenous bone graft and internal fixation. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The veteran had active military service from February 1970 to September 1971. These matters come before the Board of Veterans' Appeals (Board) following March 2000 and August 2001 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In August 2000, the veteran testified during a hearing before RO personnel. The veteran's appeal was remanded by the Board in September 2003. In May 2006, the Board increased the veteran's disability rating from 30 percent to 60 percent for the right status-post knee replacement. (In an August 2006 rating decision, the Appeals Management Center (AMC) implemented the Board's award, and assigned an effective date of July 1, 2004). The Board also denied ratings higher than 20 percent for disability of the right knee manifested by arthritis and limitation of motion and for disability of the right knee manifested by instability, both prior to May 14, 2003. Additionally, the Board remanded to the agency of original jurisdiction (AOJ) for additional development the veteran's claims for service connection for degenerative disc disease of the lumbar spine with disc bulge at L5-S1, on a direct basis and as secondary to service-connected disability of the right knee; as well as the claim for a TDIU. Following further development of the record, the AMC continued to deny the veteran's claims and returned these matters to the Board. (The decision below addresses the veteran's claim for service connection for degenerative disc disease of the lumbar spine, with disc bulge at L5-S1 (hereinafter degenerative disc disease of the lumbar spine), as secondary to service- connected disability of the right knee to include status-post fracture of the distal third of the tibia and proximal fibula, and status-post osteotomy of the right tibia and fibula, with autogenous bone graft and internal fixation (hereinafter disability of the right lower extremity). Consideration of the remaining issues on appeal is deferred pending completion of the development sought in the remand that follows the decision below.) FINDING OF FACT The veteran has degenerative disc disease of the lumbar spine with disc bulge at L5-S1 that has likely been made worse by his service-connected disability of the right lower extremity. CONCLUSION OF LAW The criteria for an award of service connection for degenerative disc disease of the lumbar spine with disc bulge at L5-S1, on a secondary basis, have been satisfied. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.310 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The pertinent medical evidence reflects an August 2003 statement from Jean-Maurice Page, M.D., of Cumberland Orthopedic and Sports Medicine. Dr. Page noted, in particular, that the veteran continued to have lower back pain because of lower extremity malalignment that had worsened over the years. The veteran presented with degenerative scoliosis and an element of spinal stenosis with a large bulging disc at L5-S1 due to the old malunion of the right lower extremity. In a June 2006 statement, Dr. Page noted that most patients over a course of a lifetime of activities developed degenerative disc disease. He opined that the veteran's degenerative disc disease had been exacerbated and accelerated to a great degree because of the gait disturbance of the right lower extremity due to the ongoing problems with the right knee over many years. In a report of January 2007 VA examination, the examiner opined that the veteran's right knee disability had not caused or worsened his degenerative disc disease of the lumbar spine. However, she did conclude that the veteran's degenerative disc disease of the lumbar spine was likely to be aggravated by his service-connected right tibia/fibula fracture. The examiner, citing to medical literature, noted that with subsequent poor healing and a gait characterized by external rotation of the leg, along with right leg shortening, that the short right leg with associated trunk flexion beyond the center of gravity did increase interdiscal pressure. In an August 2007 statement, Dr. Page again noted that the changes in the veteran's gait due to the disability of the right lower extremity had accelerated to a significant extent the degenerative disc disease of the lumbar spine. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2007). The Court of Appeals for Veterans Claims (Court) has held that when aggravation of a veteran's non-service connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service connected to the extent of the aggravation. See Allen v. Brown, 7 Vet. App. 439, 446 (1995). The Board notes that there was an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(b) (2007). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection may be made. This had not been VA's practice, which suggests that the recent change amounts to a substantive change. Given what appear to be substantive changes, and because the veteran's claim, filed in November 1999, was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which is more favorable to the claimant. Here, the Board finds that the medical evidence supports the veteran's claim for secondary service connection for degenerative disc disease of the lumbar spine with disc bulge at L5-S1. As noted above, the relevant medical opinion evidence is favorable and supports the veteran's claim that he has a low back disability that is aggravated by his service-connected disability of the right lower extremity. There is nothing in the record that contradicts these favorable opinions. Accordingly, the Board will grant service connection for degenerative disc disease of the lumbar spine with disc bulge at L5-S1, to the extent of aggravation by the service-connected disability of the right lower extremity. ORDER Entitlement to service connection for degenerative disc disease of the lumbar spine with disc bulge at L5-S1, as aggravated by service-connected disability of the right lower extremity, is granted. REMAND In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2007). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In May 2006, the Board remanded the veteran's claim for a TDIU based on insufficient notice under the VCAA. The AOJ was instructed to issue the veteran a new notice letter with regard to the claim for a TDIU; in particular, to specifically include notice of the information and evidence needed to substantiate the claim. That same month, May 2006, the AMC issued the veteran a notice letter regarding his claims. A review of that notice letter reflects notice to the veteran on total ratings due to convalescence under 38 C.F.R. § 4.30 (2007) instead of notice regarding TDIU under 38 C.F.R. § 4.16 (2007). Therefore, action is again required by the AOJ to satisfy the VCAA. See Charles v. Principi, 16 Vet. App. 370 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). After providing the required notice that must include the information and evidence necessary to substantiate a claim for a TDIU, the AOJ should attempt to obtain any pertinent outstanding evidence for which the veteran provides sufficient information and, if necessary, authorization. See 38 U.S.C.A. § 5103A(a), (g); 38 C.F.R. § 3.159. The Board also notes that in both March 2000 and August 2001, in adjudicating the veteran's claim for service connection for degenerative disc disease of the lumbar spine, the RO considered the veteran's claim on a direct basis as well as secondary to the service-connected disability of the right knee/right lower extremity. With regard to direct service connection, in a June 2005 statement, Dr. Page related the veteran's lumbar spine disability to the same event in service (a jump from a helicopter) that resulted in the veteran's service-connected disability of the right knee. Dr. Page noted the veteran's reported history of significant pain in his back following the jump that partially resolved over time but recurred with significant radiation into the right lower extremity. The Board notes that additional medical evidence of record includes a December 1983 progress note from a private physician, which reflects that the veteran sustained a back injury in October 1983 and was diagnosed with mild compression fracture of L-2 and minimal compression fracture at L-1. The progress note also reflects that the veteran was asymptomatic at that time. The veteran has contended that he suffered no residual problems associated with his October 1983 back injury. Additionally, a report of March 2001 examination for the Social Security Administration reflects the veteran's reported history of low back pain for the past 2-3 years without any report by the veteran of injury. In May 2006, the Board remanded the veteran's claim for service connection for degenerative disc disease of the lumbar spine with disc bulging at L5-S1 to obtain a medical opinion as to whether the veteran's low back disability was directly related to service or was secondary to service- connected disability of the right lower extremity. A review of the report of January 2007 VA examination does not reflect any opinion regarding the veteran's low back disability and its relationship to the veteran's period of service. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand orders). Additionally, under applicable criteria, TDIU may be awarded where the schedular rating is less than total and when it is determined that the veteran is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2007). Under § 4.16(a) if there is only one service- connected disability, it must be rated at 60 percent or more. If there are two or more disabilities, at least one of those disabilities must be rated at 40 percent or more, and the total combined rating must be 70 percent or more. Disabilities resulting from common etiology or a single accident, disabilities of one or both of the upper extremities or of the lower extremities, disabilities affecting a single body system, multiple injuries incurred in action, or multiple disabilities incurred as a prisoner of war may be considered as one disability in applying the provisions of § 4.16(a). A review of the veteran's application for increased compensation based on unemployability (VA Form 21-8940), received in May 2006, reflects his report that disability associated with his right knee and low back prevented him from following a substantial gainful occupation. The application notes that the veteran had completed two years of high school and that he had received training as an underground mine foreman. The veteran reported that from 1995 to 1999 he had worked as a truck driver and also as a mine foreman. The veteran appears to have filed his claim for a TDIU in August 2000 in light of testimony given during his VARO hearing. Prior to May 14, 2003, the veteran was rated 20 percent disabled for arthritis and limitation of motion of the right knee, as well as rated 20 percent disabled for instability of the right knee. The combined disability rating prior to May 14, 2003, was 40 percent. See 38 C.F.R. § 4.25 (2007). The Board notes that on May 14, 2003, the veteran underwent total right knee replacement surgery. He was awarded a temporary total (100 percent) convalescent rating under 38 C.F.R. § 4.30. The award was effective May 14, 2003. Thereafter, the veteran was assigned a 30 percent rating for post-operative residuals of a tear of the medial collateral ligament, anterior cruciate ligament, and medical meniscus of the right knee; status-post fracture of the distal third of the tibia and proximal fibula; and status- post total right knee replacement, effective July 1, 2004. As noted above, the veteran has since been awarded a 60 percent rating effective July 1, 2004. Additionally, as noted in the decision above, the veteran has now been service connected for degenerative disc disease of the lumbar spine, based on aggravation of the disability by service-connected right lower extremity disability. As the veteran has not been rated by the AOJ following the Board's grant of service connection for degenerative disc disease of the lumbar spine, and in light of the additional development as noted below, it is not apparent as this juncture whether the veteran has met the criteria for consideration for entitlement to TDIU on a schedular basis. At this time, the veteran is service connected for two disabilities one of which is rated as 60 percent disabling. Nonetheless, the Board must determine whether the veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). Here, in the above-noted June 2005 statement, Dr. Page reported that the veteran had marked residuals due to disability of the lumbar spine and disability of the right lower extremity. As a result, the veteran was unable to do daily work-type activities. The veteran was also noted to be excluded from all stooping, squatting, bending, or crawling, and could not lift more than 25 pounds. Dr. Page opined that the veteran was completely and totally disabled for any gainful occupation. The opinion of Dr. Page, above, is based on consideration of the veteran's service-connected right lower extremity disability as well as his degenerative disc disease of the lumbar spine. However, as noted above, the veteran's degenerative disc disease of the lumbar spine has not been related to military service; instead, the disability has been shown to have been aggravated by the service-connected right lower extremity disability. Thus, at this point, only the degree of additional disability of the veteran's degenerative disc disease of the lumbar spine due to aggravation may be considered in assessing whether that disability affects employability. It does not appear to the Board that Dr. Page necessarily took this calculation into consideration when opining on the veteran's employability. Thus, the Board finds that an additional medical opinion would be helpful in deciding the veteran's claims for service connection for degenerative disc disease of the lumbar spine, on a direct basis; as well as the claim for a TDIU. The veteran should be scheduled for an appropriate VA orthopedic examination and the examiner requested to evaluate the veteran. The examiner should conduct a review of the medical evidence and provide a well-reasoned, well-supported medical opinion, addressing the question of whether the veteran's degenerative disc disease of the lumbar spine is related to his period of military service. See 38 U.S.C.A. § 5103A(d). If the veteran's degenerative disc disease of the lumbar spine is found related to his period of service, the examiner should offer an opinion as to whether the veteran's service- connected degenerative disc disease of the lumbar spine and service-connected disability of the right lower extremity combine to preclude substantially gainful employment that is consistent with the veteran's education and occupational experience. Id.; Friscia v. Brown, 7 Vet. App. 294 (1995). If the veteran's degenerative disc disease of the lumbar spine is not found related to his period of service, the examiner must quantify the degree of additional disability resulting from aggravation of the veteran's degenerative disc disease of the lumbar spine by service-connected disability of the right lower extremity. The examiner should then offer an opinion as to whether that degree of additional disability associated with the veteran's degenerative disc disease of the lumbar spine due to aggravation, in addition to service- connected disability of the right lower extremity combine to preclude substantially gainful employment that is consistent with the veteran's education and occupational experience. Id. Any such opinions should be based, in part, upon consideration of the veteran's documented history and assertions, to include employment history, education, and medical evidence associated with the record. (The Board emphasizes to the veteran that failure to report to any scheduled examination, without good cause, could result in a denial of the remaining claims on appeal. See 38 C.F.R. § 3.655(b) (2007)). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the Act and its implementing regulations. Hence, in addition to the action requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining claims on appeal. In light of the foregoing, these matters are hereby REMANDED for the following action: 1. The AOJ should review the claims file and ensure that all notification (in particular, correspondence specifically addressing the VCAA notice and duty-to- assist provisions) and development procedures per the statutory provisions at 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 are met with regard to the veteran's claim for a TDIU. The notice elements as set forth in Dingess, supra, should be specifically addressed. 2. After securing any additional records, the veteran should be afforded a VA orthopedic examination. The entire claims file, to include a complete copy of this remand must be made available to the examiner designated to examine the veteran. A report of the examination should include discussion of the veteran's documented medical history and assertions. The examiner should be requested to evaluate the veteran's low back disability (degenerative disc disease of the lumbar spine) and disability of the right lower extremity. In addition, the examiner should elicit from the veteran and record for evaluation purposes a full work and educational history. Thereafter, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the veteran's degenerative disc disease of the lumbar spine is related to the veteran's period of military service. If the veteran's degenerative disc disease of the lumbar spine is found related to his period of service, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the veteran's service- connected degenerative disc disease of the lumbar spine and service-connected disability of the right lower extremity combine to preclude substantially gainful employment that is consistent with the veteran's education and occupational experience. If the veteran's degenerative disc disease of the lumbar spine is not found related to his period of service, the examiner must quantify the degree of additional disability resulting from aggravation of the veteran's degenerative disc disease of the lumbar spine by service-connected disability of the right lower extremity. The examiner should then offer an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the degree of additional disability associated with the aggravation of the veteran's degenerative disc disease of the lumbar spine, as well as his service- connected disability of the right lower extremity combine to preclude substantially gainful employment that is consistent with the veteran's education and occupational experience. All examination results should be set forth along with the complete rationale for the opinions provided. 3. After undertaking any other development deemed appropriate, the AOJ should readjudicate the claims remaining on appeal. If any benefit sought is not granted, the veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the AOJ. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs