Citation Nr: 1005902 Decision Date: 02/18/10 Archive Date: 03/02/10 DOCKET NO. 06-32 068 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating higher than 40 percent for arthralgia of the lower back. 2. Entitlement to a rating higher than 30 percent for heart disease with ventricular hypertrophy (previously rated as hypertension). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Nathaniel J. Doan, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from November 1968 to November 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2006 of a Department of Veterans Affairs (VA) Regional Office (RO). While on appeal, the RO increased the rating for the back disability to 40 percent, effective, November 16, 2005, the date of receipt of the current claim for increase. In December 2009, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. At the hearing, the Veteran submitted additional evidence, but waived the right to have the evidence initially considered by the RO. 38 C.F.R. § 20.1304. The claim for increase for heart disease and the claim for a total disability rating for compensation based on individual unemployability, on an extraschedular basis, are REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT Throughout the period of the appeal, arthralgia of the lower back has been manifested by pain and flexion of the thoracolumbar spine of less than 30 degrees without unfavorable ankylosis of the entire thoracolumbar spine or mild objective neurological abnormalities or incapacitating episodes. CONCLUSION OF LAW The criteria for a rating higher than 40 percent for arthralgia of the lower back have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5243 (2009). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The notification requirements are referred to as Type One, Type Two, and Type Three, respectively. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). On the claim for increase for the lower back, the RO provided pre-adjudication and post-adjudication VCAA notice by letters, dated in December 2005 and in June 2008. The notice included the type of evidence needed to substantiate the claim for increase, namely, evidence that the disability had increased in severity and the effect that worsening has on the Veteran's employment. Additionally, the Veteran was notified that VA would obtain VA records and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any such records on his behalf. The notice included the provisions for the effective date of the claim and for the degree of disability assignable. As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (to the extent of pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (2006)(notice of the elements of the claim). To the extent the VCAA notice was sent after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided content-complying VCAA notice, the claim was readjudicated, as evidenced by the supplemental statement of the case in July 2009. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained the service treatment records as well as VA and private medical records. The Veteran has not identified any additional pertinent records for the RO to obtain on his behalf. The Veteran was afforded VA examinations in January 2006, in October 2007, in April 2008, and in March 2009. Review of the reports of examinations reveal that there is adequate evidence to adjudicate the claim and there is no duty to provide another examination. 38 C.F.R. § 3.326, 3.327. REASONS AND BASES FOR FINDING AND CONCLUSION General Rating Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating Criteria for the Back Disability Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. The back disability is currently rated 40 percent under Diagnostic Code 5237. A disability under Diagnostic Code 5237 is rated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, the criterion for the next higher rating, 50 percent, is unfavorable ankylosis of the entire thoracolumbar spine. Also, under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurological abnormalities (e.g., bladder and bowel impairment) are evaluated separately under the appropriate Diagnostic Code. In this case, the appropriate Diagnostic Code is Diagnostic Code 8520, pertaining to incomplete paralysis of the sciatic nerve. Under Diagnostic Code 8520, the criterion for a 10 percent is mild incomplete paralysis. When the involvement is wholly sensory, the rating should be for mild or at most the moderate degree. 38 C.F.R. § 4.124(a). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the criteria for the next higher rating, 60 percent, are incapacitating episodes having a total duration of a least 6 week during the past 12 months. For the purpose of the rating criteria, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Rating factors for a disability of the musculoskeletal system included functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Also with any form of arthritis, painful motion is factor to be considered. 38 C.F.R. § 4.59. Facts The Veteran filed the current claim for increase in November 2005. Private medical records show that in August 2005 acute lumbar neuritis or radiculitis was noted. On VA examination in January 2006, Veteran described limitations on his ability to work and his need to have assistance in doing chores. The examiner reported that the Veteran could accomplish activities of daily living without assistance and that the disability did not require bedrest and that there had not been incapacitating episodes during the past year. On physical examination, flexion was to 20 degrees. Testing for radiculopathy was negative. Motor strength was normal and sensory evaluation was intact. Private medical records show that in March 2006 testing for radiculopathy was negative. On VA examination in October 2007, it was noted that in December 2006 the Veteran retired due to his back problem, but there were no incapacitating episodes during the past 12 months due to the back disability. Flexion was to 45 degrees. The knee and ankle reflexes were absent. Sensory testing was intact. The straight leg raising test was positive for pain. On VA examination in March 2009, the examiner reported that the Veteran had no incapacitating episodes during the previous year. The Veteran complained of constant pain and morning stiffness, but no radiating pain or numbness or bowel or bladder impairment. On physical examination, flexion was to 20 degrees. Motor strength was normal and pinprick sensation was normal. The deep tendon reflexes were active. X-rays revealed degenerative changes. Analysis The criterion for a rating higher than 40 percent is unfavorable ankylosis of the entire thoracolumbar spine. On VA examinations in 2006, 2007, and 2009, the examiners found flexion limited at worst to 20 degrees, but there was no evidence of unfavorable ankylosis of the entire thoracolumbar spine. Therefore, the criterion for the next higher rating under the General Formula has not been met. As for associated objective neurologic abnormalities, the Veteran has not identified any bowel or bladder impairment. On VA examinations in 2006, 2007, and 2009, when reported, on neurological testing, motor strength was normal and sensory evaluation was normal. Although the deep tendon reflexes were diminished, there is no evidence of muscle impairment below the knee or weaken knee flexion. And the diminished deep tendon reflexes do not more nearly approximate the criterion of mild incomplete paralysis of sciatic nerve to warrant a separate rating under Diagnostic Code 8520 in the absence of evidence of impaired functional loss or sensory involvement. And there is no evidence of incapacitating episodes. For these reasons, the criteria for a rating higher than 40 percent for arthralgia of the lower back have not been met. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here, the rating criteria reasonably describe the Veteran's symptoms and provide for a higher rating for more severe symptoms, which have not been shown. Therefore the disability picture is contemplated by the Rating Schedule. Consequently, referral for an extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER A rating higher than 40 percent for arthralgia of the lower back is denied. REMAND On the claim for increase for heart disease, the record shows that in April and May 2008 the Veteran was hospitalized for atrial fibrillation, resulting in congestive heart failure and cardiomyopathy, requiring cardioversion. During the hospitalization, the ejection fractions for left ventricular function were between 25 and 40 percent. On VA examination in March 2009, the VA examiner noted that since the cardioversion in May 2008 the Veteran had no recurrences of atrial fibrillation, which is a recognized complication of hypertension. And VA records show that an echocardiogram was done in March 2009, but the report is not in the Veteran's file. In light of the above, the Board determines that further development of the record is needed under the duty to assist, 38 C.F.R. § 3.159, including a reexamination to verify the current severity of the heart disability, 38 C.F.R. § 3.327. In December 2009, the Veteran testified that he retired in December 2006 because of his back disability and that he stopped working earlier than he otherwise would have due to his back as he could no longer due the work required by his job. As the service-connected disabilities do not meet the schedular percentage requirements for a total disability rating for compensation based on individual unemployability under 38 C.F.R. § 4.16(a), the record raises the claim for a total disability rating for compensation on extra-schedular basis under 38 C.F.R. § 4.16(b) over which the Board has jurisdiction. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (A claim of unemployability expressly raised by the Veteran or reasonably raised by the record is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability, as part of a claim for increase.). Accordingly, the case is REMANDED for the following action: 1. Ask to the Veteran to submit the private medical records from Baylor Heart and Vascular Hospital in Dallas, Texas, and from his private cardiologist from May 2008 to March 2009 or to authorize VA to obtain the records on his behalf. 2. Obtain the report of the echocardiogram in March 2009 from the Dallas, Texas, VA Medical Center. 3. Afford the Veteran a VA examination to determine the current severity of heart disease. a). METs testing is required unless medical contraindicated. If METs testing can not be done for medical reasons, the examiner is asked to estimate the Veteran's level of activity, expressed in METS. b). Also, the examiner is asked to comment on the ejection fraction for any left ventricular dysfunction. 4. After the above development is completed, adjudicate the claim for increase for heart disease. If the determination remains adverse to the Veteran, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. 5. Ensure VCAA compliance on the claim for a total disability rating for compensation based on individual unemployability on an extraschedular basis. Thereafter, adjudicate the claim under 38 C.F.R. § 4.16(b). If the determination is adverse to the Veteran, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs