Citation Nr: 1007442 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 08-20 617 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for right upper extremity peripheral neuropathy secondary to service- connected thoracic spine disability. 2. Entitlement to service connection for left lower extremity peripheral neuropathy secondary to service- connected thoracic spine disability. 3. Entitlement to service connection for headaches secondary to service-connected thoracic spine disability. 4. Entitlement to an initial rating in excess of 20 percent for compression fracture of the thoracic spine with chronic upper back pain and spondylosis. ATTORNEY FOR THE BOARD Jennifer Margulies, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1979 to November 1979 and from July 2003 to January 2006. She also had reserve service. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for compression fracture thoracic spine with chronic upper back pain and spondylosis, evaluated as 20 percent disabling, and denied the claims of entitlement to service connection for right upper and left lower peripheral neuropathy and headaches. The Board notes that the rating decision also addressed the issues of service connection for left upper extremity and right lower extremity peripheral neuropathy. The Veteran filed a timely notice of disagreement and only listed the issues on the title page of this decision. The RO then sent a statement of the case (SOC) with the above listed issues. The Veteran filed a timely substantive appeal and stated that she also wished to appeal the issues of service connection for left upper extremity and right lower extremity peripheral neuropathy. The issues of entitlement to service connection for peripheral neuropathy of the right upper and left lower extremities have been properly developed for appellate review. However, the issues of entitlement to service connection for peripheral neuropathy of the left upper extremity and right lower extremities have not been developed for appellate review and no additional action has been taken in response to the Veteran's statements. As such, those matters are referred to the RO for any action deemed appropriate. EF v. Derwinski, 1 Vet. App. 324, 326 (1991) [noting that VA must liberally construe all documents filed by a claimant in order to determine, or even to infer, what claims have been filed]. The Board also notes that the Veteran submitted additional evidence, which was received at the Board in November 2008. A statement waiving initial RO consideration of the new evidence is not associated with the claims folder. In any event, the Board finds that the new evidence is not pertinent to this appeal. 38 C.F.R. § 20.1304(c) (2009) ("Evidence is not pertinent if it does not relate to or have a bearing on the appellate issue or issues.") Since the new evidence is not pertinent to the issues on appeal, it is not for consideration in adjudicating the above claims. For this reason, the absence of a waiver as to such evidence does not prejudice the Veteran here and the Board will proceed to adjudicate this appeal. The issue of entitlement to service connection for headaches secondary to service-connected thoracic spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Competent medical evidence of right upper extremity peripheral neuropathy is not of record. 2. Competent medical evidence of left lower extremity peripheral neuropathy is not of record. 3. The service-connected compression fracture of the thoracic spine with chronic upper back pain and spondylosis is manifested by forward flexion to 40 degrees, extension to 5 degrees, bilateral bending to 15 degrees and bilateral rotation to 15 degrees. There was no evidence of ankylosis or physician prescribed bedrest. CONCLUSIONS OF LAW 1. Right upper extremity peripheral neuropathy was not incurred in or aggravated by active military service, nor was it caused by or proximately due to the service-connected thoracic spine disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2009). 2. Left lower extremity peripheral neuropathy was not incurred in or aggravated by active military service, nor was it caused by or proximately due to the service-connected thoracic spine disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2009). 3. The criteria for an initial disability evaluation in excess of 20 percent for compression fracture of the thoracic spine with chronic upper back pain and spondylosis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.58, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Pertinent Laws and Regulations In order to establish service connection, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic disability in service or during an applicable presumptive period and still has such disability. Such evidence must be medical unless it relates to a disability as to which, under the United States Court of Appeals for Veterans Claims' (Court's) case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a disability noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2009). It is also noted that service connection may be granted for a disability which is proximately due to and the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2009). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative balance, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C.A. § 5107(b) (West 2002). Analysis The Veteran seeks service connection for peripheral neuropathy of the right upper and left lower extremities, as secondary to service-connected thoracic spine disability. However, a review of the Veteran's medical records does not show a current diagnosis of peripheral neuropathy. Thus, the claims must be denied. At the outset, the Board acknowledges that the Veteran has made repeated complaints of right arm and left leg weakness and tingling. The Veteran received a VA examination in May 2006. The examiner noted that the Veteran was diagnosed with a soft tissue injury. The Veteran received an MRI in April 2005, which showed two ruptured discs, but no neurological problems. The Veteran also received an electromyography (EMG) which was normal. The examiner conducted a sensory examination and noted that the Veteran used her right arm significantly more than expected based on her examination. There was no objective evidence of radiculopathy, paralysis or peripheral nerve damage. The examiner stated that the Veteran's examination strongly suggests a functional component to her weakness/sensory loss. The examiner concluded that a thoracic level lesion would fail to explain any symptoms in her hands and arms since they are innervated at the cervical level. The examiner stated that the numbness, tingling and weakness are not related to the thoracic compression fracture she sustained while in service. The distribution on examination is not suggestive of neuropathy. The examiner noted that the negative finding on the MRI failed to explain the Veteran's diffuse right arm and left leg weakness. The examiner stated that it is possible that she has a C5-6 radiculopathy on the right, however, given the pronounced functional neurological examination; the weakness was unable to be diagnosed clinically. While the Board does not dispute the fact that the Veteran experiences various symptoms with regard to her right arm and left leg, there is no objective clinical confirmation that she suffers from an actual disability. See Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001); Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (service connection may not be granted for symptoms unaccompanied by a diagnosed disability). The Court has held that pain alone, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a disability for which service connection may be granted. Id. In the absence of a clear diagnosis of peripheral neuropathy, which is attributable to some identifiable disease or injury during service, an award of service connection is not warranted. As an aside, the Board points out that the evidence attributes the Veteran's complaints of numbness, weakness, and tingling to her non service-connected cervical spine disability. Even under these circumstances, service connection is not warranted. Service connection for a cervical spine disability is not in effect. As the Veteran's medical records do not reflect a current diagnosis of peripheral neuropathy, the Board finds that the preponderance of the evidence is against the claim of service connection, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). II. Increased Rating Pertinent Laws and Regulations Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2009). Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Evaluation of a service-connected disability involving a limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2009). The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45 (2009). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2009). Analysis The Veteran seeks entitlement to an initial increased rating for her service-connected compression fracture of the thoracic spine with chronic upper back pain and spondylosis, which is currently evaluated as 20 percent disabling under Diagnostic Code 5242. A thorough review of the record shows that an increased rating is not warranted at this time. In order for the Veteran to receive the next-higher 40 percent evaluation, the evidence must demonstrate either favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine to 30 degrees or less. 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Veteran was provided a VA examination in May 2006. The examiner diagnosed compression fractures of the thoracic spine with chronic upper back pain and spondylosis. The examiner noted that the Veteran has pain on a daily basis that radiates into the left ribs intermittently. The examiner noted that the activities of the Veteran's daily living are not affected. The Veteran's thoracolumbar range of motion was forward flexion to 40 degrees, extension to 5 degrees, bilateral bending to 15 degrees and bilateral rotation to 15 degrees. The Veteran did not experience additional loss of motion, fatigue or incoordination on repetitive movement. The Veteran was also not prescribed bed rest. A review of the Veteran's range of motion findings shows that a higher rating is not warranted under Diagnostic Code 5242 at this time. The Veteran does not have forward flexion of the thoracolumbar spine limited to 30 degrees and there is no evidence of ankylosis. The Board acknowledges the Veteran's complaints of radiculopathy. The Board is cognizant of 38 C.F.R. § 4.71a, Diagnostic Code 5242 Note 1, which states to evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately under an appropriate diagnostic code. However, as discussed above, the criteria for the assignment of a separate rating are not met. While the Veteran reported one instance of incontinence, there was no evidence of a neurological impairment. In this case, despite the Veteran's complaints of pain and weakness radiating to both of her arms and legs, by history and currently, no objective evidence of neurological deficits to warrant the assignment of a separate rating is present. Therefore, the Board cannot award a separate rating under Diagnostic Code 8526. The Board has also considered evaluation of the Veteran's back disability under all other potentially appropriate diagnostic codes to determine whether a higher evaluation can be assigned. In this regard, Diagnostic Code 5243 offers a rating for intervertebral disc syndrome based on incapacitating episodes. With respect to a higher rating based on the frequency and extent of incapacitating episodes (defined as 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), there is no evidence of bed rest prescribed by a doctor. The May 2006 examiner noted that the Veteran was not placed on bedrest in the past year. Therefore, a higher rating is not warranted under Diagnostic Code 5243. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board has also considered evaluation of the Veteran's back disability under Diagnostic Codes 5235-5241 to determine whether a higher evaluation can be assigned. Again, the medical evidence of record is negative for any findings indicating ankylosis or spinal fusion. Therefore, a disability evaluation under Diagnostic Codes 5235-5241 would not yield a higher rating. See 38 C.F.R. § 4.71a. With respect to the possibility of entitlement to an increased evaluation under 38 C.F.R. §§ 4.40, 4.45, 4.59, the Board has also considered whether an increased evaluation could be assigned on the basis of functional loss due to the Veteran's subjective complaints of pain. See DeLuca v. Brown, 8 Vet. App. 202, 204-205 (1995); VAOPGCPREC 36-97, 63 Fed. Reg. 31,262 (1998). The objective and subjective findings do not support an increased evaluation due to functional loss. Although the Veteran has complained of pain and impairment due to her thoracic spine and spondylosis, the VA examiner found no evidence of additional impairment due to fatigue, incoordination or weakness. See May 2006 VA examination report. Therefore, an increased evaluation is not warranted based on application of 38 C.F.R. §§ 4.40, 4.45, and DeLuca. Finally, pursuant to 38 C.F.R. § 3.321(b)(1), an extraschedular rating is warranted when there exists such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. In this case, the record is void of any evidence suggesting exceptional impairment due to the thoracic spine disability beyond that contemplated by the ratings schedule. There is no indication that the Veteran has been hospitalized on a frequent basis for treatment of her thoracic spine disability. In summary, and for the reasons and bases set forth above, the Board concludes that the Veteran is appropriately rated at 20 percent for compression fracture of the thoracic spine with chronic upper back pain and spondylosis. The Veteran is encouraged to reapply for benefits if her symptoms worsen. III. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (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). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case, the Veteran received notice of the evidence needed to substantiate a service connection claim in November 2005. The Veteran's thoracic spine claim arises from her disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Based on the foregoing, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting her in the procurement of service treatment records, pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has obtained the Veteran's service treatment records, VA treatment records, and private medical records and afforded the Veteran a VA examination. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file. Therefore, VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. ORDER Entitlement to service connection for right upper extremity peripheral neuropathy secondary to service-connected thoracic spine disability is denied. Entitlement to service connection for left lower extremity peripheral neuropathy secondary to service-connected thoracic spine disability is denied. Entitlement to an initial rating in excess of 20 percent for compression fracture of the thoracic spine with chronic upper back pain and spondylosis is denied. REMAND The Veteran asserts that she is entitled to service connection for headaches as secondary to her service- connected thoracic spine disability. The Veteran's National Guard records from 2004 and 2005 show complaints of headaches. At a VA examination in May 2006, the VA examiner stated that the Veteran's headaches are consistent with migraines, which are not tension or muscular headaches and are therefore less likely related to thoracic vertebrae compression fractures sustained in service. Private medical records submitted by the Veteran dated in September 2007, state that the Veteran's daily headaches are secondary to her thoracic problems. Another medical notation states that the Veteran's chronic upper back pain usually causes her headaches. Given the aforementioned contradictory medical opinions, another VA examination is needed to determine the etiology of the Veteran's current headaches. The medical reports also do not indicate whether the Veteran's claims file was available for review prior to rendering an opinion. Additional development is needed. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran proper VCAA notice addressing the claim for service connection secondary to compression fracture of the thoracic spine with chronic upper back pain and spondylosis. 2. Following the above action, schedule the Veteran a VA examination in order to determine the nature and etiology of her headaches. The claims file and a separate copy of this remand must be provided to the examiner for review. The examiner should note in the examination report that he or she has reviewed the claims folder. a. Specifically, the examiner should report all current diagnoses and express an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's headaches are proximately due to, or aggravated by, any service-connected disability. If it is determined that any headaches disorder was worsened by the Veteran's service-connected thoracic spine disability, to the extent that is possible the examiner should determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level of disability. See 38 C.F.R. § 3.310 (2009). b. The examiner should also opine whether it is at least as likely as not that any current headaches were incurred during service or are otherwise etiologically related to service. A complete rationale must be given for any opinion expressed. If the examiner cannot respond without resorting to speculation, she or he should explain why a response would be speculative. 3. Thereafter, readjudicate the issue on appeal. If the desired benefit is not granted, a supplemental statement of the case should be furnished to the Veteran. The appropriate time within which to respond should also be afforded to the Veteran. The case should then be returned to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or 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 of Veterans' Appeals 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. 2009). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs