Citation Nr: 0813758 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 06-06 887A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial rating in excess of 40 percent for the service-connected lumbar strain with L3-5 degenerative disc disease (DDD), claimed as degenerative spinal arthritis and lumbar stenosis. 2. Entitlement to service connection for depression, to include as secondary to service-connected lumbar strain with L3-5 degenerative disc disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD A.M. Ivory, Associate Counsel INTRODUCTION The veteran had active military service from August 1991 to June 1992 and National Guard service from November 1995 to February 2004, with corroborated active duty from March to May of 1996 and from July to December of 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Cleveland, Ohio. As the claim on appeal involves a request for higher initial rating following the grant of service connection, the Board has characterized that issue in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing an initial rating claim from a claim for an increased rating for disability already service-connected). The veteran testified before the undersigned Acting Veterans Law Judge in July 2007 at the RO. After the hearing the veteran submitted additional medical evidence with a waiver of initial RO jurisdiction. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.1304. In July 2007, the veteran's private physician stated that as a result of his service-connected disabilities he was permanently and totally disabled. The Board also notes that a November 2006 RO rating decision denied the veteran entitlement to service connection for a right knee injury; however, a July 2007 private physician's note casually stated that his right knee injury was secondary to his service- connected lumbar strain. Therefore, the Board refers the issues of entitlement to total rating based on individual unemployability by reason of service-connected disability (TDIU) and the issue of entitlement to service connection for a right knee injury secondary to his service-connected lumbar strain to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issues on appeal has been accomplished. 2. The service-connected lumbar strain with L3-5 DDD is not shown to be manifested by unfavorable ankylosis of the thoracolumbar spine or intervertebral disc syndrome with incapacitating episodes that were a total duration of at least 6 weeks during the past 12 months. 3. The currently demonstrated depression is shown as likely as not to have been aggravated by the service-connected lumbar strain. CONCLUSIONS OF LAW 1. The criteria for the assignment of an increased rating in excess of 40 percent for the service-connected lumbar strain with L3-5 DDD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a (including Diagnostic Codes 5237 and 5243) (2007). 2. By extending the benefit of the doubt to the veteran, his depression is proximately due to or the result of the service-connected lumbar strain with L3-5 DDD. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.310(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's duties The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board will address these provisions in regard to the increased evaluation claim but not the service connection claim, in view of the entirely favorable disposition of that claim. A proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to provide, and that the claimant is expected to provide; and must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). Any error in VCAA notification should be presumed prejudicial, and VA has the burden of rebutting this presumption. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) reaffirmed principles set forth in earlier Federal Circuit and United States Court of Appeals for Veterans Claims (Court) cases in regard to the necessity of both a specific VCAA notification letter and an adjudication of the claim at issue following that letter. See also Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). The Mayfield line of decisions reflects that a comprehensive VCAA letter, as opposed to a patchwork of other post- decisional documents (e.g., Statements or Supplemental Statements of the Case), is required to meet VA's notification requirements. At the same time, VCAA notification does not require an analysis of the evidence already contained in the record and any inadequacies of such evidence, as that would constitute a preadjudication inconsistent with applicable law. The VCAA letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a VCAA notification letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. In the present case, the veteran was issued a VCAA letter meeting the specific requirements of C.F.R. § 3.159(b)(1) in reference to the initial claim of service connection for a low back disorder in March 2004. As this letter was issued prior to the appealed rating decision, this case raises no procedural concerns in view of the Mayfield line of decisions. The question of whether a further VCAA letter for a "downstream" issue, such as an initial evaluation claim, is required was addressed by the VA Office of General Counsel in VAOPGCPREC 8-2003 (Dec. 22, 2003). In this precedent opinion, the General Counsel held that, in such circumstances, a Statement of the Case was required in cases involving a "downstream" issue, but 38 U.S.C.A. § 5103(a) did not require separate notice of the information and evidence necessary to substantiate the newly raised issue. Id. Here, the required Statement of the Case addressing this matter was issued in August 2006. The Board is also aware of the considerations of the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), regarding the need for notification that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, such notification was provided in a March 2006 letter. As to VA's duty to assist the veteran with the obtaining of evidence necessary to substantiate a claim, under 38 U.S.C.A. § 5103A, in this case VA has obtained records of treatment reported by the veteran, and there is no indication from the claims file of additional medical treatment for which VA has not obtained, or made sufficient efforts to obtain, corresponding records. The Board also notes that the veteran has been afforded a comprehensive VA examination in conjunction with this appeal, addressing his low back disorder. In summary, all relevant facts have been properly developed in regard to the veteran's claim, and no further assistance is required in order to comply with VA's statutory duty to assist with the development of facts pertinent to the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Accordingly, the Board finds that no prejudice to the veteran will result from an adjudication of this appeal in this Board decision. Rather, remanding this case for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). II. Higher initial evaluation for DDD of the lumbar spine In the present case, the veteran is seeking an initial evaluation in excess of 40 percent for his service-connected lumbar spine disorder. As his claim was received in 2004, after the enactment of recent revisions to the schedular criteria for evaluating spine disorders, the Board initially observes that the instances in which a higher evaluation may be assigned are very limited and involve only ankylosis or incapacitating episodes of intervertebral disc syndrome, where applicable. The Board is fully aware of the veteran's limitation of motion of the lumbar spine, but there exists no schedular basis for an evaluation in excess of 40 percent for limitation of motion. Under a rating scheme incorporating 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, a 40 percent evaluation is in order for forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine, while a 100 percent evaluation contemplates unfavorable ankylosis of the entire spine. Under Diagnostic Code 5243, a 40 percent evaluation is assigned in cases of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A 60 percent evaluation contemplates incapacitating episodes having a total duration of at least six weeks during the past twelve months. Associated objective neurological abnormalities (e.g., bladder and bowel impairment) are to be evaluated separately. The Board has reviewed the recent pertinent medical findings, including from a July 2005 VA examination report and multiple outpatient treatment records, but finds that the service- connected lumbar strain with DDD is not shown to warrant an initial evaluation higher than the current 40 percent evaluation. At no time has the veteran been shown to have unfavorable ankylosis of the thoracolumbar spine. In addition, there is no medical evidence that the veteran has had intervertebral disc syndrome with incapacitating episodes (e.g., prescribed bedrest) that were a total duration of at least 6 weeks during the past 12 months. Rather, he was noted in a July 2007 private medical statement to be confined "to bed on occasions" only. The Board also does not find that the extent of the veteran's disability, combined with such symptoms as functional loss due to pain, painful motion, weakness, and excess fatigability, is analogous to a higher evaluation. This is particularly true since he has not been shown to have favorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months, which, along with limitation of motion, constitute the bases for a 40 percent evaluation. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1996); 38 C.F.R. §§ 4.40, 4.45. In this case, the veteran's spouse submitted a lay statement that described his symptoms and the effects his service- connected disability has on his everyday life and his family. The spouse is a registered nurse, but in the field of neonatal medicine with no indication of expertise in orthopedic or spinal disabilities. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In addition, the veteran testified that he was incapacitated for 150 days the year prior and that he stayed in the fetal position and moaned. He stated that bending over was impossible and that he used a cane. As indicated above, however, such a degree of incapacitation has not been medically documented. The veteran may, however, submit additional documentation in the future to support his contentions and, ultimately, a higher evaluation. Moreover, the Board finds no basis for separate compensable evaluations for any associated objective neurological abnormalities. There is no indication of bladder or bowel impairments, or of impairments of the sciatic nerve or analogous neuropathy or radiculopathy symptoms that are at least chronic and mild in degree. While intermittent paresthesias of the lower limbs were noted in April 2004, neurological testing from the September 2005 VA examination was unremarkable. See 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620, 8720. Finally, the veteran has submitted no evidence showing that this disorder has markedly interfered with his employment status beyond that interference contemplated by the assigned evaluation, and there is also no indication that this disorder has necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal. As such, 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), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Overall, the evidence does not support an initial evaluation in excess of 40 percent for the service-connected lumbar strain with DDD, and the claim must be denied. 38 C.F.R. § 4.7. III. Service connection for depression Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a veteran's active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2006). Service connection also may be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service- connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The veteran testified that he has depression secondary to his service-connected lumbar strain with DDD. Generally, when a veteran contends that a service-connected disorder has caused or aggravated a secondary disability, there must be competent medical evidence of such causation or aggravation. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995); Jones v. Brown, 7 Vet. App. 134 (1994). To prevail on the issue of secondary service causation, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin, supra. In July 2007 the veteran's private physician stated that he had a history of major depression with psychotic features which required on going psychological care. The veteran's private psychologist stated in July 2007 that he was diagnosed with major depressive disorder and anxiety disorder. Attached documentation reflects that the veteran was depressed, anxious, irritable, in constant pain, and had paranoid trends in thinking. Significantly, this documentation indicates that severe pain of the veteran's service-connected lumbar disability aggravated the veteran's mental condition. In addition, the Board notes that the veteran was granted Social Security disability from the Social Security Administration in August 2004 based on the primary diagnosis of affective disorder and the secondary diagnosis of discogenic and degenerative disorders of the back. During his July 2007 Travel Board hearing, the veteran testified about his service-connected lumbar strain with DDD and the effects on his daily life, which included his depression. The Board finds that after careful review of the veteran's medical evidence and his testimony that his depression is secondary to his service-connected lumbar strain. There is competent medical evidence of record supporting this conclusion and no competent medical evidence of record directly to the contrary. The Board notes that when, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b). Accordingly, by extending the benefit of the doubt to the veteran in this case, service connection for depression as secondary to service-connected lumbar strain with DDD is warranted. ORDER An increased rating in excess of 40 percent for the service- connected lumbar strain with DDD is denied. Service connection for depression, as secondary to the veteran's service-connected lumbar strain with DDD, is granted. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs