Citation Nr: 1113707	
Decision Date: 04/07/11    Archive Date: 04/15/11

DOCKET NO.  07-10 713	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUES

1.  Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for methicillin-resistant staphylococcus aureus (MRSA), claimed as due to Department of Veterans Affairs (VA) lack of proper care/negligence in providing hospitalization in May 2007.

2.  Entitlement to service connection for depression, including as secondary to MRSA.

3.  Entitlement to service connection for diabetes mellitus.

4.  Entitlement to service connection for a liver disability.

5.  Entitlement to an earlier effective date than November 17, 1999, for an award of service connection for lumbosacral spine degenerative disc disease with lumbosacral spine strain and residuals of laminectomy syndrome with radiculitis.

6.  Entitlement to an earlier effective date than November 17, 1999, for an award of a total disability rating based on individual unemployability (TDIU) on an extraschedular basis.

7.  Entitlement to an initial rating greater than 40 percent for lumbosacral spine degenerative disc disease with lumbosacral spine strain and residuals of laminectomy syndrome with radiculitis.


REPRESENTATION

Appellant represented by:	Sean Ravin, Attorney


ATTORNEY FOR THE BOARD

Michael T. Osborne, Counsel


INTRODUCTION

The Veteran had active service from September 1967 to February 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which granted the Veteran's claim of service connection for lumbosacral spine degenerative disc disease with lumbosacral spine strain and residuals of laminectomy syndrome with radiculitis ("lumbosacral spine disability") and assigned a 40 percent rating effective November 17, 1999.  Because the initial rating assigned to the Veteran's service-connected lumbosacral spine disability is not the maximum rating available for this disability, this claim remains in appellate status.  See AB v. Brown, 6 Vet. App. 35 (1993).

This matter also is on appeal of a December 2006 rating decision in which the RO granted the Veteran's claim of entitlement to a TDIU on an extraschedular basis effective November 17, 1999.  The Veteran seeks an effective date earlier than November 17, 1999, for the award of a TDIU on an extraschedular basis.

In March 2007, the Veteran notified VA that he had moved to the jurisdiction of the RO in Des Moines, Iowa.  That facility retains jurisdiction over this appeal.

This matter finally is on appeal of a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, which denied the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 for MRSA, claimed as due to VA hospitalization in May 2007, and also denied the Veteran's claims of service connection for depression, including as secondary to MRSA, and for diabetes mellitus and a liver disability.

The issue of entitlement to service connection for depression, including as secondary to MRSA, and entitlement to a separate compensable rating for neurological abnormalities associated with the service-connected lumbosacral spine disability are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office in Des Moines, Iowa.  VA will notify the Veteran if further action is required on his part.


FINDINGS OF FACT

1.  The competent evidence shows that the Veteran's MRSA was not proximately due to or the result of VA carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing reasonable care, or to an event not reasonably foreseeable.

2.  The competent evidence shows that the Veteran's diabetes mellitus, which manifested first several decades after his service separation, is not related to active service.

3.  The competent evidence shows that the Veteran's liver disability, which manifested first several decades after his service separation, is not related to active service.

4.  In a rating decision issued to the Veteran and his service representative on July 29, 1993, the RO denied the Veteran's request to reopen a previously denied claim of service connection for a lumbosacral spine disability; this decision was not appealed and became final.

5.  The Veteran's successfully reopened claim of service connection for a lumbosacral spine disability was date-stamped as received by the RO on November 17, 1999.

6.  Service connection is in effect for lumbosacral spine degenerative disc disease with lumbosacral spine strain and residuals of laminectomy syndrome with radiculitis, evaluated as 40 percent disabling effective November 17, 1999.

7.  There is no correspondence in the claims file dated between July 29, 1993, when the rating decision which denied the Veteran's request to reopen his previously denied service connection for a lumbosacral spine disability was issued to him and his service representative, and November 17, 1999, when his successfully reopened service connection claim for a lumbosacral spine disability was date-stamped as received by the RO.

8.  The Veteran was unable to secure and maintain substantially gainful employment in April 1991; prior to that date, he was employed full-time.

9.  The Veteran's VA Form 21-8940, "Veteran's Application For Increased Compensation Based On Unemployability," was date-stamped as received by the RO on August 29, 2005.

10.  In a rating decision dated on December 11, 2006, and issued to the Veteran and his service representative on December 15, 2006, the RO granted entitlement to a TDIU on an extraschedular basis effective November 17, 1999.

11.  The competent evidence shows that the Veteran was not entitled to a TDIU on an extraschedular basis prior to November 17, 1999.

12.  The competent evidence shows that the Veteran's service-connected lumbosacral spine disability is manifested by, at worst, complaints of pain and tenderness in the lumbosacral spine.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to compensation for MRSA, claimed as a result of VA hospitalization in May 2007, under the provisions of 38 U.S.C.A. § 1151, have not been met.  38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.361 (2010).

2.  Diabetes mellitus was not incurred in or aggravated by active service nor may it be presumed to have been incurred during service.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2010).

3.  A liver disability was not incurred in or aggravated by active service.  38 U.S.C.A. § 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304 (2010).

4.  The June 1993 rating decision, which denied the Veteran's request to reopen a previously denied claim of service connection for a lumbosacral spine disability, is final.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2010); 38 C.F.R. § 3.104 (2010). 

5.  The criteria for an effective date earlier than November 17, 1999, for an award of service connection for lumbosacral spine degenerative disc disease with lumbosacral spine strain and residuals of laminectomy syndrome with radiculitis have not been met.  38 U.S.C.A. §§ 5101(a), 5110, 5111 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1(q), 3.31, 3.105(a), 3.151(a), 3.400 (2010). 

6.  The criteria for an effective date earlier than November 17, 1999, for an award of TDIU on an extraschedular basis have not been met.  38 U.S.C.A. §§ 5101(a), 5110, 5111 (West 2002 & Supp. 2010); 38 C.F.R. §§  3.1(q), 3.31, 3.105(a), 3.151(a), 3.400, 4.16 (2010).

7.  The criteria for an initial rating greater than 40 percent for lumbosacral spine degenerative disc disease with lumbosacral spine strain and residuals of laminectomy syndrome with radiculitis have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010);  38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5292 (effective before September 26, 2003); 38 C.F.R. § 4.71a, DC 5242 (effective September 26, 2003).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined.  The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim.

In letters issued in August and in September 2003 and in March 2008, VA notified the appellant of the information and evidence needed to substantiate and complete his claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  These letters informed the appellant to submit medical evidence relating the claimed disabilities to active service and noted other types of evidence the Veteran could submit in support of his claims.  The Veteran also was informed of when and where to send the evidence.  After consideration of the contents of these letters, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claims.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The Veteran's earlier effective date claims for a lumbosacral spine disability and for a TDIU on an extraschedular basis and his higher initial rating claim for a lumbosacral spine disability are "downstream" elements of the RO's grant of service connection for a lumbosacral spine disability and grant of entitlement to a TDIU on an extraschedular basis in the currently appealed rating decision.  For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection.  See VAOPGCPREC 8-2003 (Dec. 22, 2003).  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).  As noted, in August and in September 2003, VA notified the Veteran of the information and evidence needed to substantiate and complete these claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187.

As will be explained below in greater detail, the evidence does not support granting the Veteran's claim for compensation under 38 U.S.C.A. § 1151 for MRSA.  The evidence also does not support granting service connection for diabetes mellitus or for a liver disability.  The evidence further does not support granting an effective date earlier than November 17, 1999, for an award of service connection for a lumbosacral spine disability or for a TDIU on an extraschedular basis.  The evidence also does not support assigning an initial rating greater than 40 percent for the Veteran's service-connected lumbosacral spine disability.  Because the Veteran was fully informed of the evidence needed to substantiate his claims, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  The claimant also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Additional notice of the five elements of a service-connection claim was provided in March 2006 and in the March 2008 VCAA notice letter, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

With respect to the timing of the notice, the Board points out that the Veterans Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In this case, the August and September 2003 VCAA notice letter was issued to the Veteran and his service representative prior to the currently appealed rating decisions issued in April 2005, which granted service connection for a lumbosacral spine disability and assigned a 40 percent rating, and in December 2006, which granted a TDIU on an extraschedular basis.  The March 2008 VCAA notice letter was issued to the Veteran and his service representative prior to the currently appealed rating decision issued in July 2008, which denied the Veteran's claim for compensation under 38 U.S.C.A. § 1151 for MRSA and also denied his service connection claims for diabetes mellitus and for a liver disability.  Thus, all of the notice was timely.  Because all of the appellant's claims are being denied in this decision, any question as to the appropriate disability rating or effective date is moot.  See Dingess, 19 Vet. App. at 473.

To the extent that Dingess requires more extensive notice as to potential downstream issues such as disability rating and effective date, because the currently appealed rating decisions issued in April 2005 and in December 2006 were fully favorable to the Veteran on the issues of service connection for a lumbosacral spine disability and entitlement to a TDIU on an extraschedular basis, and because the Veteran was fully informed of the evidence needed to substantiate his claims, the Board finds no prejudice to the Veteran in proceeding with the present decision.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  In Dingess, the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  See Dingess, 19 Vet. App. at 490-91.

The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board, although he declined to do so.  It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise.  The Veteran's complete Social Security Administration (SSA) records, to include a copy of an SSA disability benefits award decision, also have been received and associated with the claims file.

As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim.  An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's act of service; but does not contain sufficient medical evidence for VA to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) ; McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

The Veteran has been provided with VA examinations which address the contended causal relationship between the claimed disabilities and active service.  His attorney has asserted in various communications with VA that the Veteran has not been provided with an adequate VA examination with respect to the any of his currently appealed claims.  In questioning the adequacy of the VA examinations which have been conducted during the pendency of this appeal, the appellant and his attorney appear to be raising a general challenge to the professional competence of the VA examiners who conducted these examinations.  Both the Court and the Federal Circuit have held, however, that the Board is entitled to presume the competence of a VA examiner and specific challenges to a VA examiner's competency must be raised by the appellant to overcome this presumption.  See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009) and Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010); see also Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (citing Hilkert v. West, 12 Vet. App. 145, 151 (1999)).  The Court specifically held in Cox that "the Board is entitled to assume the competence of a VA examiner."  Cox, 20 Vet. App. at 569 (citations omitted).  Absent evidence or argument which called in to question a VA examiner's professional competence, the Court concluded in Cox that it is not error for the Board to presume that a VA examiner is competent.  Id.

The Federal Circuit in Rizzo expressly adopted the Cox standard regarding the presumption of competence of VA examiners absent specific argument or evidence concerning professional competence advanced by an appellant.  See Rizzo, 580 F.3d at 1290-91.  In adopting the presumption of competence of VA examiners announced by the Court in Cox, the Federal Circuit specifically held in Rizzo that:

Absent some challenge to the expertise of a VA expert, this court perceives no statutory or other requirement that VA must present affirmative evidence of a physician's qualifications in every case a precondition for the Board's reliance upon that physician's opinion. Indeed, whereas here, the Veteran does not challenge a VA medical expert's competence or qualifications before the Board, this court holds that VA need not affirmatively establish that expert's competency.

Id.  Neither the appellant nor his attorney has raised a specific challenge to the professional medical competence or qualifications of any of the VA examiners who conducted the VA examinations completed during the pendency of this appeal.

Recent Federal Circuit precedent also suggests that VA correctly relied upon the VA examination reports currently of record in adjudicating the Veteran's currently appealed claims.  In Bastien, an appellant challenged the qualifications of a VA physician to provide a medical expert opinion on the grounds that this physician lacked objectivity and/or independence because he was a VA employee.  See Bastien, 599 F.3d at 1306-7.  Citing Rizzo, the Federal Circuit in Bastien rejected the appellant's challenge to the qualifications of a VA physician and held instead that the law and regulations provide that VA "is explicitly and implicitly authorized to use its own employees as experts."  See Bastien, 599 F.3d at 1307 (citing 38 U.S.C. §§ 5103A(d), 7109(a); 38 C.F.R. § 20.901).  The Federal Circuit also held in Bastien that an appellant challenging the expertise of a VA physician must "set forth the specific reasons...that the expert is not qualified to give an opinion."  Id. That has not happened in this case.  Neither the appellant nor his attorney have identified or submitted any evidence or argument that any of the VA examiners who conducted the VA examinations completed during the pendency of this appeal were not competent or lacked the professional medical training necessary to conduct a thorough physical examination and report accurately the results of that examination. They contend instead generally that there is no competent or probative VA examination report of record.  This argument is not persuasive for the reasons outlined above.  Nor is there any requirement, as the Court held in Cox and as the Federal Circuit held in Rizzo, that VA establish the competence of any VA examiner prior to relying on the VA examination reports currently of record in adjudicating the Veteran's currently appealed claims.  The Federal Circuit noted in Rizzo that there was "no law or precedent suggesting that the Board must have first established [a VA examiner's] qualifications on the record before assigning his opinion probative value."  See Rizzo, 580 F.3d at 1291-92.

Even assuming for the sake of argument only that it was error to rely on the VA examination reports currently of record, any error is harmless in this case because there has been no showing or even an allegation that any of the VA examiners who conducted the VA examinations completed during the pendency of this appeal was not competent or did not report accurately the Veteran's current symptomatology.  The Board also finds that the VA examination reports (relied on in analyzing the Veteran's claims below) are adequate for evaluation purposes because they addressed fully all of the Veteran's contentions regarding his claimed disabilities, described completely his current symptomatology, and made findings appropriate to the Rating Schedule.  See 38 C.F.R. § 4.2 (2010).  The Board further finds that a remand to obtain another VA examination would serve no purpose but to delay further the adjudication of the appellant's claims with no benefit flowing to him.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran) and Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided).

There is no competent evidence, other than the Veteran's statements, which indicates that diabetes mellitus or a liver disability may be associated with service.  The Veteran is not competent to testify as to etiology of either of these disabilities as they require medical expertise to diagnose.  The evidence of record includes VA and private medical records, including all of the available records concerning the Veteran's hospitalization at a VA Medical Center in May 2007, and a VA examiner's opinion dated in May 2008 which addresses the contended causal relationship between the Veteran's VA hospitalization in May 2007 and MRSA.  After review of this opinion, the Board finds that it provides competent, non-speculative evidence regarding the claimed etiology of the Veteran's MRSA.  With respect to the Veteran's earlier effective date claims for a lumbosacral spine disability and for a TDIU on an extraschedular basis, there is no duty to provide an examination or a medical opinion because such evidence would not be relevant to these claims.  The Veteran also has been provided with VA examinations which address the current nature and severity of his service-connected lumbosacral spine disability.  Thus, the Board finds that additional examinations are not required even under the low threshold of McLendon.  In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA.

38 U.S.C.A. § 1151 Claim

The Veteran contends that he is entitled to additional compensation under 38 U.S.C.A. § 1151 for MRSA, claimed as due to VA lack of proper care/negligence in providing hospitalization in May 2007.  The Veteran specifically contends that VA lack of proper care/negligence caused him to contract MRSA while hospitalized at a VA Medical Center in May 2007.  He contends that, but for VA lack of proper care/negligence while he was hospitalized at a VA Medical Center in May 2007, he would not have contracted MRSA.

The appropriate legal standard for claims for compensation under 38 U.S.C.A. § 1151 filed on and after October 1, 1997, as in this case, provides that compensation shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability or death were service-connected.  For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran's willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable.  38 U.S.C.A. § 1151 (West 2002).

From the plain language of this statute, it is clear that, to establish entitlement to benefits under 38 U.S.C.A. § 1151, all three of the following factors must be shown: (1) disability/additional disability, (2) VA hospitalization, treatment, surgery, examination, or training was the cause of such disability, and (3) there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an unforeseen event.

Effective September 2, 2004, 38 C.F.R. § 3.361 relating to section 1151 claims was promulgated for claims filed on or after October 1, 1997, such as this claim.  See 69 Fed. Reg. 46,426 (2004) (codified as amended at 38 C.F.R. § 3.361 (2010)). In determining whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran's condition after such care or treatment.  38 C.F.R. § 3.361(b).  To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran's additional disability.  Merely showing that a Veteran received care or treatment and that the Veteran has an additional disability does not establish cause.  Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress.  Additional disability or death caused by a Veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination.  38 C.F.R. § 3.361(c)(1).

38 C.F.R. § 3.361(d) states that the proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause.  To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability or death (as explained in paragraph (c) of this section); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent.

The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 for MRSA, claimed as due to VA lack of proper care/negligence in providing hospitalization in May 2007.  A review of the Veteran's claims file shows that, in a May 2007 "Clinical Warning" included in his VA outpatient treatment records, it was noted that, on a recent admission to a VA Medical Center, the Veteran had been screened and found to be MRSA positive.  He had been discharged before the MRSA results had been obtained.  It also was noted that this "Clinical Warning" had been rescinded.  

On VA outpatient treatment in January 2008, the Veteran complained of itching and painful areas of the bilateral lower extremities and left lateral chest radiating in to the spine and sternum.  Physical examination showed a small area of scabbed over lesions on the lateral portion of the right lower extremity which appears to be more zoster-like in appearance than MRSA dermal infection.  It was noted that the Veteran had a history of MRSA-positive nares colonization in May 2007.  

On VA examination in May 2008, the Veteran complained of MRSA.  He was not certain when his MRSA began or when he had been diagnosed as having MRSA.  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records.  This examiner stated that, after being admitted to a VA Medical Center for fatigue and iron deficiency anemia in May 2007, a nasal swab for MRSA came back positive.  This examiner concluded that this indicated that the Veteran had community-acquired MRSA which was detected as part of a screen for MRSA.  Physical examination showed MRSA colonization on his nose and no other disease.  The VA examiner opined that the Veteran's MRSA was detected as part of a screen within 24 hours of a hospital admission to a VA Medical Center in May 2007.  This indicated that the Veteran's MRSA was most likely community-acquired MRSA.  This examiner also opined that there was no evidence of hospital neglect, carelessness, lack of proper skill, error in judgment, or fault on behalf of the VA Medical Center.  The diagnosis was MRSA colonization detected on nasal swab shortly after admission to hospital in May 2007 which indicated community-acquired MRSA colonization.  

In an October 2008 treatment note included in the Veteran's VA outpatient treatment records, a VA MRSA Nurse Coordinator stated that the Veteran had been positive for MRSA in March 2008 and had another positive MRSA nares culture in October 2008.  It was noted that the Veteran was colonized for MRSA.  The MRSA Nurse Coordinator reviewed what that meant in great detail with the Veteran.  The Veteran was advised to alert his medical team that he was colonized for MRSA.  He also reported feeling less stressed about MRSA after talking with the Nurse Coordinator.  In a February 2010 addendum to this treatment note, the VA MRSA Nurse Coordinator stated that the Veteran had tested positive for MRSA on admission to a VA Medical Center and remained colonized for MRSA.  The VA MRSA Nurse Coordinator also stated that no further cultures were needed during the Veteran's current hospitalization.

In a March 2010 addendum to a hospital admission note, a VA MRSA Nurse Coordinator stated that the Veteran had a positive MRSA admission nasal screen and had been in contact precautions since his recent admission to a VA Medical Center.  The VA MRSA Nurse Coordinator also stated that no further cultures were needed during the Veteran's current hospitalization.

The Board finds that the competent evidence does not indicate that the Veteran's current MRSA was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital treatment or an event not reasonably foreseeable.  It appears that the Veteran's MRSA first was diagnosed following admission to a VA Medical Center in May 2007 although he was discharged before the laboratory results (which were positive for MRSA) had been obtained.  The Veteran also has tested positive for MRSA during routine screenings conducted on subsequent admissions to a VA Medical Center in 2008 and in 2010.  As the VA examiner concluded in May 2008, however, because the Veteran had tested positive for MRSA on admission to a VA Medical Center in May 2007, this indicated that he most likely had contracted community-acquired MRSA.  In other words, it appears that the Veteran had acquired MRSA in the community prior to his admission to a VA Medical Center in May 2007 and not as the result of any lack of care/negligence on the part of VA.  The VA examiner also opined in May 2008 that there was no evidence of hospital neglect, carelessness, lack of proper skill, error in judgment, or fault on behalf of the VA Medical Center.  There is no competent contrary opinion of record.  The Veteran also has not identified or submitted any competent evidence, to include a medical nexus, which indicates that his MRSA was the result of neglect, carelessness, lack of proper skill, error in judgment, or fault on behalf of VA.  Absent such evidence, the Board finds that entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for MRSA, claimed as due to VA lack of proper care/negligence in providing hospitalization in May 2007, is not warranted.

In reaching the above conclusions, the Board acknowledges Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), in which the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  The relevance of lay evidence is not limited to the third situation but extends to the first two as well.  Whether lay evidence is competent and sufficient in a particular case is a fact issue.  The Veteran is competent to report what he experienced since he was diagnosed as having MRSA in May 2007.  The Board concludes that his lay statements are less than credible in light of the competent medical evidence of record showing no clinical relationship between his current MRSA and his May 2007 hospitalization at a VA Medical Center.   The Veteran has not shown that he has the expertise required to diagnose MRSA.  Nor is he competent to offer an opinion regarding any causal relationship between his VA hospitalization in May 2007 and MRSA.  While the Veteran's contentions have been considered carefully, these contentions are outweighed by the medical evidence of record showing no nexus between his VA hospitalization in May 2007 and his current MRSA.

Service Connection Claims

The Veteran contends that he incurred diabetes mellitus and a liver disability during active service.  He specifically contends that in-service exposure to contaminated water while serving in Africa caused diabetes mellitus and/or a liver disability.

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease 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).  Certain chronic diseases, including diabetes mellitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  

If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim.  See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent.  If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology.  See Savage, 10 Vet. App. at 495-498.

It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  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.  Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 C.F.R. § 3.102.

The Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for diabetes mellitus.  The Board notes initially that the Veteran does not contend, and the evidence does not show, that he served in the Republic of Vietnam during active service such that his in-service herbicide exposure can be presumed and the presumptions of service connection for Vietnam-era Veterans with "in-country" service in the Republic of Vietnam are applicable to this claim.  See generally 38 C.F.R. §§ 3.307, 3.309.  The Veteran has contended instead that in-service exposure to "contaminated water" while serving in Africa caused him to develop diabetes mellitus.  His service treatment records show that he was not treated for or diagnosed as having diabetes mellitus at any time during active service.  These records show instead that he was seen for a variety of complaints as an outpatient at the U.S. Air Force Hospital at Wheelus Air Base in Libya.  It appears that certain of his service treatment records may have been lost in February 1968 after he was assigned to Chanute Air Force Base in Illinois.  On periodic physical examination in April 1968, the Veteran denied any relevant medical history.  Clinical evaluation was normal except for increased lumbar lordosis and left paraspinal tenderness.  The Veteran's urinalysis was negative for sugar and albumin.  There was no separation physical examination available for review.  Although the Veteran's service treatment records confirm that he served in Libya, the competent evidence shows that he was not diagnosed as having diabetes mellitus during active service or within the first post-service year (i.e., by February 1970) such that service connection for diabetes mellitus is warranted on a presumptive service connection basis.  See 38 C.F.R. §§ 3.307, 3.309.  The Veteran also has not identified or submitted any competent evidence, to include a medical nexus, which demonstrates that he was diagnosed as having diabetes mellitus during active service or within the first post-service year.  Accordingly, the Board finds that service connection for diabetes mellitus is not warranted on a presumptive service connection basis.

The Veteran also is not entitled to service connection for diabetes mellitus on a direct service connection basis.  The Veteran's post-service medical records show that, although he was treated for diabetes mellitus following service separation, it is not related to active service.  It appears that, following his service separation in February 1969, the Veteran first was treated for diabetes mellitus on VA outpatient treatment in November 2006, or more than 37 years later.  The Board notes that evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  In November 2006, the Veteran complained of diabetes.  He stated that he had been eating a lot of sweets and his blood sugars at home ranged from 140-207.  It was noted that he had been diagnosed as having diabetes 6 months earlier.  The assessment included diabetes mellitus which was controlled.  He was advised to continue taking glyburide and to avoid pure sweets.

In October 2007, no relevant complaints were noted.  A history of diabetes mellitus was noted.  It was noted that the Veteran's HbA1c of 6.7 % indicated good control despite a glucose of 229.  The assessment included type 2 diabetes mellitus.  The Veteran was advised to continue taking glyburide 5 mg 3 times a day.

In April 2008, the Veteran's complaints included diabetes mellitus.  It was noted that the Veteran was on glyburide 5 mg 3 times a day and metformin 500 mg twice daily.  His home blood glucose ranged between 140-200.  He denied experiencing polyuria and polydypsia.  The assessment was unchanged.

In October 2008, it was noted that the Veteran's home blood glucose was approximately 200 or more.  The assessment included diabetes mellitus, not controlled.

On August 17, 2010, the Veteran complained that he was not feeling well.  He also complained of chronic fatigue and a lack of energy which had worsened in the previous week.  It was noted that the Veteran had reported to the VA clinic to re-establish care in the VA health care system.  It also was noted that he had been seen once a little over 1 year earlier.  The Veteran reported that his fasting blood glucose had been 218 that morning and the lowest it had been was 189.  A history of diabetes mellitus was noted.  The assessment included diabetes, not well controlled.

On August 24, 2010, the Veteran stated that he felt "ok."  He checked his blood glucose twice a day.  He reported that his fasting blood glucose ran around 170 in the morning and in the 200's in the evenings.  He denied experiencing any hypoglycemic episodes.  His current insulin dosage was Glargine 21 units every night.  The assessment included diabetes with poor control.

The Board acknowledges the Veteran's continuing complaints of diabetes mellitus which he relates to drinking "contaminated water" while serving in Africa.  Although the Veteran's service treatment records confirm his service in Africa, the competent evidence shows that he first was diagnosed as having diabetes mellitus in 2006, or 37 years after his service separation.  The Board also acknowledges that the Veteran currently is being treated as an outpatient for diabetes mellitus.  None of his post-service VA treating physicians have related the Veteran's diabetes mellitus to active service or any incident of service, however.  The Board observes in this regard that the Veteran has not reported any relevant in-service medical history, to include allegedly drinking "contaminated water" during service in Africa, to any of his post-service VA treating physicians who have seen him for management of his diabetes mellitus since it was diagnosed in 2006.  The Veteran also has not identified or submitted any competent evidence, to include a medical nexus, which relates his current diabetes mellitus to active service or any incident of such service.  Accordingly, the Board finds that service connection for diabetes mellitus also is not warranted on a direct service connection basis.

The Board further finds that the preponderance of the evidence is against the Veteran's claim of service connection for a liver disability.  The Veteran has contended that in-service exposure to contaminated drinking water while on active service in Africa caused him to develop a liver disability.  As noted above, the Veteran's service treatment records show that he served in Libya during active service.  These records do not show, however, that he was treated for or diagnosed as having a liver disability at any time during active service.  On periodic physical examination in April 1968, the Veteran denied any relevant medical history and clinical evaluation was normal.  As also noted above, it appears that certain of his service treatment records may have been lost after he was assigned to Chanute Air Force Base in Illinois and a copy of his separation physical examination was not available for review.

The post-service medical evidence shows that, although the Veteran has been diagnosed as having a liver disability, it is not related to active service.  It appears that, after his service separation in February 1969, the Veteran first was treated for a liver disability on VA examination in May 2008, or more than 39 years later.  See Maxson, 230 F.3d at 1333.  At that examination, the Veteran's complaints included a liver condition.  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA and private treatment records.  This examiner noted that a February 2008 ultrasound had shown a fatty liver and hepatosplenomegaly.  The date of onset of the Veteran's claimed liver condition was unknown.  The Veteran reported that, while on active service in Africa, he drank a lot of beer "because of bad water."  Physical examination showed no evidence of malnutrition, no weight change, an enlarged liver, no evidence of ascites, normal liver consistency, no abdominal tenderness, splenomegaly, and no other signs of liver disease.  The VA examiner stated that the etiology of the Veteran's hepatosplenomegaly was unknown at that time although a fatty liver could be caused by diabetes mellitus.  The diagnosis was fatty liver, most likely due to diabetes.

The Board acknowledges the Veteran's assertion that in-service exposure to contaminated drinking water caused him to develop a liver disability decades after his service separation.  There is no indication in the Veteran's service treatment records that he was exposed to contaminated drinking water in active service or complained of or was treated for a liver disability at any time during active service, including while he served in Libya.  The post-service medical evidence also is completely silent for any complaints of or treatment for a liver disability for nearly 40 years after his service separation until he was seen on VA examination in May 2008.  The competent evidence (in this case, the May 2008 VA examination report) indicates instead that the Veteran's liver disability (variously diagnosed as hepatosplenomegaly or a fatty liver) most likely is due to his non-service-connected diabetes mellitus.  There is no competent contrary opinion of record.  The Veteran also has not identified or submitted any competent evidence, to include a medical nexus, which relates his current liver disability to active service or any incident of such service.  Accordingly, the Board finds that service connection for a liver disability is not warranted.  

In this decision, the Board has considered all lay and medical evidence as it pertains to the issue.  38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence").  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown,6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). 

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. at 303 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").  In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995).  

As part of the current VA disability compensation claims, in recent statements, the Veteran has asserted that his symptoms of diabetes mellitus and a liver disability  have been continuous since service.  He asserts that he continued to experience symptoms relating to diabetes mellitus and a liver disability after he was discharged from service.  In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of either diabetes mellitus or a liver disability after service separation.  Further, the Board concludes that his assertion of continued symptomatology since active service, while competent, is not credible.  

The Board finds that the Veteran's more recently-reported history of continued symptoms of diabetes mellitus or a liver disability since active service is inconsistent with the other lay and medical evidence of record.  Indeed, while he now asserts that his disorder began in service, in the more contemporaneous medical history he gave at a periodic physical examination conducted in April 1968, he denied any relevant medical history or complaints of symptoms of diabetes mellitus or a liver disability.  Specifically, the April 1968 examination report reflects that the Veteran was examined and his kidneys and liver were found to be clinically normal.  His in-service history of symptoms reported in April 1968 is more contemporaneous to service so it is of more probative value than the more recent assertions made many years after service separation.  Similarly, when the Veteran was seen on VA examination in March 1969, just 1 month after his separation from active service in February 1969, although he complained of low back pain, he did not report any relevant in-service medical history or complaints of diabetes mellitus or a liver disability.  The history of symptoms reported in March 1969, just 1 month after service separation, also is more contemporaneous to service and it is more probative than the Veteran's recent assertions made many decades after service separation.  See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later).  

The post-service medical evidence does not reflect complaints or treatment related to diabetes mellitus or a liver disability for several decades following active service.  The Board emphasizes the multi-year gap between discharge from active service (1969) and initial reported symptoms related to diabetes mellitus in approximately 2006 (a 37-year gap) and initial reported symptoms related to a liver disability in 2008 (a 39-year gap).  See Maxson, 230 F.3d at 1333; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability).

The Board notes that the Veteran sought treatment for a myriad of medical complaints since discharge from service, including a lumbosacral spine disability.  Significantly, during that treatment, when he specifically complained of other problems, he never reported complaints related to diabetes mellitus or a liver disability.  Rucker, 10 Vet. App. at 67 (holding that lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).

The Veteran filed a VA disability compensation claim for service connection for a lumbosacral spine disorder in 1969, shortly after service separation, but did not claim service connection for diabetes mellitus or a liver disability or make any mention of any diabetes mellitus or liver symptomatology.  He also did not claim that symptoms of these disorders began in (or soon after) service until he filed his current VA disability compensation claims.  Such statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous in-service histories and his previous statements made for treatment purposes.  See Pond v. West, 12 Vet. App. 341 (1999) (finding that, although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). 

These inconsistencies in the record weigh against the Veteran's credibility as to the assertion of continuity of symptomatology since service.  See Madden, 125 F.3d at 1481 (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service).  

The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his previous more contemporaneous in-service history and findings, the absence of complaints or treatment for years after service, and his previous statements made for treatment purposes.  For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation.

Earlier Effective Date Claims

The Veteran contends that he is entitled to an earlier effective date than November 17, 1999, for an award of service connection for lumbosacral spine degenerative disc disease with lumbosacral spine strain and residuals of laminectomy syndrome with radiculitis ("lumbosacral spine disability") and for a TDIU on an extraschedular basis.  He specifically contends that the correct effective date for an award of service connection for a lumbosacral spine disability should be the date that he filed his original service connection claim for this disability.  He also contends that his extraschedular TDIU award should be effective in 1991, the last year in which he contends he was able to work before his service-connected disabilities rendered him unemployable.

A claim for a TDIU is a claim for an increased rating. See Hurd v. West, 13 Vet. App. 449 (2000) (holding that a claim for TDIU is a claim for increased compensation and the effective date rules for increased compensation apply to a TDIU claim); see also Norris v. West, 12 Vet. App. 413 (1999).

A Veteran may be awarded a TDIU rating upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a). 

The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation.  VAOPGC 75-91.  The issue is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage").  See Moore v. Derwinski, 1 Vet. App. 356 (1991).  In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal.  Friscia v. Brown, 7 Vet. App. 294 (1995).

In determining whether the Veteran is entitled to a TDIU, neither his non-service-connected disabilities or his age may be considered.  Van Hoose v. Brown, 4 Vet. App. 361 (1993).  The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524 (1993).  The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience.

In general, except as otherwise provided, the effective date of an evaluation an award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  For claims of entitlement to service connection the effective date will be the day following separation from active service or date entitlement arose if the claim is filed within one year of discharge from service, otherwise the effective date is the date of receipt of claim or date entitlement arose, whichever is later.  38 C.F.R. § 3.400(b)(2)(i) (2010).

A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought.  See 38 C.F.R. § 3.155(a).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).  

Upon receipt of an informal claim, if a formal claim has not been filed, the RO will forward an application form to the claimant for execution.  If the RO receives a complete application from the claimant within one year from the date it was sent, the RO will consider it filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155 (2010).

A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or VA issue, if the report relates to a disability which may establish entitlement.  38 C.F.R. § 3.157.  Once a formal claim for compensation has been allowed, receipt of a report of examination by VA, or evidence from a private physician, will be accepted as an informal claim for benefits.  In the case of examination by VA, the date of examination will be accepted as the date of receipt of a claim.  The provisions of the preceding sentence apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established, or when a claim specifying the benefit sought is received within one year from the date of such examination.  In the case of evidence from a private physician, the date of receipt of such evidence by VA will be accepted as the date of the claim.  Id.

The Board finds that the preponderance of the evidence is against assigning an effective date earlier than November 17, 1999, for an award of service connection for a lumbosacral spine disability.  The Board notes initially that the Veteran has filed for service connection for a lumbosacral spine disability on several occasions since his separation from active service in February 1969.  He initially filed a service connection claim for a lumbosacral spine disability at his discharge from active service in February 1969.  In a rating decision dated on April 7, 1969, and issued to the Veteran on April 10, 1969, the RO denied the Veteran's claim of service connection for a lumbosacral spine disability.  The RO specifically found that the Veteran's lumbosacral spine disability existed prior to service and was not aggravated during service.  

The next relevant correspondence occurred when the Veteran then filed to reopen this claim on a VA Form 21-526 which was date-stamped as received by the RO on December 6, 1977.  The RO denied the request to reopen the previously denied service connection claim for a lumbosacral spine disability in a rating decision issued to the Veteran and his service representative on December 29, 1977.  In that decision, the RO informed the Veteran that his claim had been denied because it was essentially a duplicate of a claim previously filed and he had not submitted new and material evidence.  This rating decision also was not appealed.    

The Veteran again filed to reopen this claim on a VA Form 21-526 which was date-stamped as received by the RO on April 9, 1993.  In response, the RO sent the Veteran a letter dated on April 26, 1993, requesting that he provide additional information concerning his request to reopen the previously denied claim (including additional medical treatment records).  The next relevant correspondence occurred when the RO denied the Veteran's request to reopen his previously denied service connection claim in a rating decision  letter which was issued to him and his service representative on July 29, 1993.  There is no record of a response from the Veteran.

The next relevant correspondence occurred when the Veteran submitted his most recent request to reopen his previously denied service connection claim for a lumbosacral spine disability on a VA Form 21-526 which was date-stamped as received by the RO on November 17, 1999.  The RO denied this request in a March 2000 rating decision.  After the Veteran perfected a timely on his request to reopen a previously denied service connection claim for a lumbosacral spine disability, the Board denied this claim in September 2001.  Both the Veteran and VA's Office of General Counsel filed a Joint Motion for Remand with the Court and, in October 2002, the Court vacated and remanded the Board's September 2001 decision.  The Board then remanded the Veteran's claim to the RO/AMC in July 2003 for additional development.  

The next relevant correspondence occurred when SSA provided VA with the Veteran's complete SSA disability benefits claims file on August 27, 2003.  A review of these records shows that the Veteran was awarded SSA disability benefits in August 1993 for, among other things, status-post L4-5 discectomy.

The next relevant correspondence occurred when the Veteran's attorney forwarded an "Independent Medical Evaluation" from Craig N. Bash, M.D., concerning the etiology of the Veteran's lumbosacral spine disability.  Dr. Bash opined that the Veteran had injured his lumbosacral spine during active service and his current lumbosacral spine disability was related to service.  This evidence was dated on January 11, 2004, date-stamped as received at the AMC on February 20, 2004, and date-stamped as received by the RO on April 19, 2004.

The next relevant correspondence occurred when the Veteran submitted additional private treatment records concerning his back condition.  These records were dated between 2003 and 2004 and were date-stamped as received by the RO on August 23, 2004.  The Veteran had a VA spine examination on March 8, 2005, and a copy of this examination report was received by the RO on March 16, 2005.  The VA examiner concluded that the Veteran's current lumbosacral spine disability was related to active service.

In a rating decision dated on April 22, 2005, and issued to the Veteran and his representative on May 11, 2005, the RO reopened the Veteran's previously denied service connection claim for a lumbosacral spine disability and granted this claim on the merits, assigning a 40 percent rating effective November 17, 1999.  The RO concluded that this was the appropriate effective date for an award of service connection for a lumbosacral spine disability because that was the date that VA had received the Veteran's successfully reopened claim.

The next relevant correspondence occurred when the Veteran's attorney submitted  a letter dated on June 16, 2005, and date-stamped as received by the RO on June 21, 2005, in which the Veteran disagreed with the effective date assigned for the award of service connection for a lumbosacral spine disability.  

The next relevant correspondence occurred when SSA provided additional copies of the Veteran's SSA disability benefits claims file to VA.  These records showed treatment for a back disability and were date-stamped as received by the RO on September 2, 2005.  

The next relevant correspondence occurred when the Veteran filed his substantive appeal (VA Form 9) which was dated on April 5, 2007, and date-stamped as received by the RO on April 9, 2007.  He contended that he was entitled to an earlier effective date for an award of service connection for a lumbosacral spine disability "as a matter of law."

The next relevant correspondence occurred when additional VA outpatient treatment records were received and associated with the claims file on February 22, 2008.  These records were dated between June 2005 and February 2008 and showed outpatient treatment for a lumbosacral spine disability.  Additional VA outpatient treatment records were received and associated with the claims file on May 14, 2008.  These records were dated between February and May 2008.  Additional VA outpatient treatment records were received and associated with the claims file on February 18, 2009.  These records were dated between May 2008 and February 2009 and showed outpatient treatment for a lumbosacral spine disability.

The Veteran had a VA spine examination on September 30, 2010, and a copy of this examination report was received by the RO on October 7, 2010.  Additional VA outpatient treatment records were received and associated with the claims file on December 3, 2010.  These records were dated between August and December 2010 and showed outpatient treatment for a lumbosacral spine disability.

There is no indication in the claims file that the Veteran submitted any correspondence to VA between July 29, 1993, and November 17, 1999, concerning his claim of service connection for a lumbosacral spine disability.  Indeed, there is no correspondence in the Veteran's claims file dated between July 1993 and November 1999 concerning any VA claim.  It appears instead that the Veteran most recently sought to reopen his previously denied claim of service connection for a lumbosacral spine disability on November 17, 1999.  As outlined above, the competent evidence did not show that the Veteran's lumbosacral spine disability was related to service until his representative submitted a January 2004 report from Dr. Bash which was received at the AMC in February 2004.  A subsequent VA examination report in March 2005 also indicated that the Veteran's lumbosacral spine disability was related to active service.  This evidence was received by the RO several years after the Veteran filed his successfully reopened service connection claim for a lumbosacral spine disability on November 17, 1999.  Thus, the competent evidence does not demonstrate that the Veteran is entitled to an effective date earlier than November 17, 1999, for the award of service connection for a lumbosacral spine disability.  

The Board observes that the laws and regulations governing effective dates are clear.  For claims of entitlement to service connection the effective date will be the day following separation from active service or date entitlement arose if the claim is filed within one year of discharge from service; otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later.  38 C.F.R. § 3.400(b)(2)(i) (2010).  The evidence of record demonstrates that VA received the Veteran's successfully reopened claim of service connection for a lumbosacral spine disability on November 17, 1999, which is more than one year after separation from service.  This claim also was received more than one year after the prior final rating decision issued in July 1993 which had denied the Veteran's request to reopen his service connection claim for a lumbosacral spine disability.  The Veteran also has not identified or submitted any evidence demonstrating his entitlement to an earlier effective date than November 17, 1999, for a service-connected lumbosacral spine disability.  Thus, the Board finds that the criteria for assigning an effective date earlier than November 17, 1999, for an award of service connection for a lumbosacral spine disability are not met.

The Board also finds that the Veteran is not entitled to an effective date earlier than November 17, 1999, for an award of a TDIU on an extraschedular basis.  The precise effective date for an award of a TDIU on an extraschedular basis to which he feels he is entitled is not clear from a review of the voluminous correspondence received by VA from either the Veteran or his attorney.  The Board notes that, in his January 2004 "Independent Medical Evaluation," Dr. Bash opined that the Veteran had been unemployable due to his back problems since 1991 according to his reported history and because SSA had found him unemployable due to back problems in 1991.  The Board observes in this regard that it is not bound by any determination of SSA.  The Board also observes that the January 2004 evaluation from Dr. Bash was date-stamped as received by the AMC on February 20, 2004.  Thus, it appears that the Veteran seeks an earlier effective date of 1991 for an award of a TDIU on an extraschedular basis.

In August 2004, the Veteran submitted a copy of the worker's compensation claim he had filed in 1991 concerning  an on-the-job low back strain he had experienced in April 1991.  The Veteran's employer noted that his on-the-job back injury had occurred while he was performing "custodial operations."

As noted elsewhere, in the currently appealed rating decision dated on April 22, 2005, and issued to the Veteran on May 11, 2005, the RO granted his claim of service connection for a lumbosacral spine disability and assigned a 40 percent rating effective November 17, 1999.  The RO also deferred adjudication of a TDIU claim pending receipt of the Veteran's SSA records.

When the Veteran filed his formal TDIU claim on a VA Form 21-8940 which was dated on August 18, 2005, and date-stamped as received by the RO on August 29, 2005, he contended that he had become too disabled to work as a result of his service-connected lumbosacral spine disability in April 1991.  He also contended that he last had worked and his service-connected lumbosacral spine disability had affected his full-time employment in April 1991.

As noted above, additional copies of the Veteran's SSA disability benefits claims file were received by VA in September 2005.  SSA concluded in August 1993 that the Veteran's disability had begun in April 1991 and he was entitled to SSA disability benefits for, among other things, status-post L4-5 discectomy.  The Board again observes that it is not bound by any SSA decision.

In a September 27, 2005, memorandum to the Director, Compensation & Pension (C&P) Service, the Veterans Service Center Manager at the RO in Albuquerque, New Mexico, requested that C&P consider the Veteran's entitlement to a TDIU on an extraschedular basis.  It was noted in this memorandum that service connection was in effect for a lumbosacral spine disability evaluated as 40 percent disabling and the competent evidence did not warrant a higher rating for the Veteran's only service-connected disability.  This memorandum also provided a summary of the Veteran's SSA records.  Because the Veteran did not meet the schedular requirements for TDIU, his TDIU claim had been forwarded to the Director, C&P Service, for further guidance.

In a decision dated on December 5, 2006, and included in the Veteran's claims file, the Director, C&P Service, concluded that, after a complete review of the claims file, the Veteran was unemployed and unemployable due to his service-connected lumbosacral spine disability.  The Director, C&P Service, also determined that entitlement to a TDIU on an extraschedular basis had been established.  

In the currently appealed rating decision dated on December 11, 2006, and issued to the Veteran and his representative on December 15, 2006, the RO implemented the decision of the Director, C&P Service, granting entitlement to a TDIU on an extraschedular basis.  The RO concluded that the appropriate effective date for the award of TDIU on an extraschedular basis was November 17, 1999, because that was the date that the Veteran's successfully reopened service connection claim for a lumbosacral spine disability had been received.

The Board acknowledges that the Veteran and his attorney have contended that he is entitled to an effective date earlier than November 17, 1999, for an award of a TDIU on an extraschedular basis.  The Board notes, however, that the Veteran's current combined disability evaluation for compensation is 40 percent effective November 17, 1999; thus, the Veteran was not entitled to a TDIU on a schedular basis on that date.  See 38 C.F.R. § 4.16(a).  Service connection is not in effect for any other disabilities.  The Board also acknowledges that the Director, C&P Service, concluded in December 2006 that, although the Veteran did not meet the schedular criteria for a TDIU, he was entitled to a TDIU on an extraschedular basis.  See 38 C.F.R. § 4.16(b).  The Director, C&P Service, also concluded in December 2006 that the Veteran was unemployable as a result of his service-connected lumbosacral spine disability.    

Although the evidence (in this case, the Veteran's SSA records and the evaluation by Dr. Bash) indicates that the Veteran may have been unemployable due to back problems as early as April 1991, none of this evidence was received prior to November 17, 1999.  Instead, a review of the claims file shows that the evidence supporting the Veteran's entitlement to a TDIU on an extraschedular basis was received by VA in 2004 and 2005.  Despite the Veteran's assertions that he was totally disabled by his service-connected lumbosacral spine disability at least as of April 1991, there is no evidence that he filed a formal TDIU claim prior to August 29, 2005, when his formal TDIU claim was date-stamped as received by the RO.  As the RO concluded in the currently appealed rating decision issued in December 2006, the Veteran first became eligible for a TDIU on an extraschedular basis on November 17, 1999, the date that service connection was awarded for a lumbosacral spine disability and a 40 percent rating was assigned.  The Board agrees with this conclusion.

The Board observes that the laws and regulations governing effective dates are clear.  For claims of entitlement to service connection, the effective date will be the day following separation from active service or date entitlement arose if the claim is filed within one year of discharge from service; otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later.  38 C.F.R. § 3.400(b)(2)(i) (2010).  And, as noted, the Court has held that the effective date for TDIU claims is the later of the date of receipt of the claim or the date entitlement arose.  See Hurd, 13 Vet. App. at 449, and Norris, 12 Vet. App. at 413.  The evidence of record demonstrates that VA received the Veteran's successfully reopened claim of service connection for a lumbosacral spine disability on November 17, 1999, which is more than one year after separation from service.  It is undisputed that service connection is not in effect for any other disabilities; thus, the Veteran's entitlement to TDIU on an extraschedular basis flows from his entitlement to service connection for a lumbosacral spine disability.  And the Board previously has found in this decision that the Veteran is not entitled to an effective date earlier than November 17, 1999, for an award of service connection for a lumbosacral spine disability.  Even assuming for the sake of argument only that the Veteran's entitlement to a TDIU on an extraschedular basis arose in 1991, when he alleges that he became too disabled to work as a result of his lumbosacral spine disability, his service connection claim for a lumbosacral spine disability was not received until November 17, 1999.  Thus, this is the earliest factually ascertainable date that the Veteran was entitled to TDIU on an extraschedular basis.  See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(2).  The Veteran also has not identified or submitted any evidence demonstrating his entitlement to an effective date earlier than November 17, 1999, for an award of a TDIU on an extraschedular basis.  Accordingly, the Board finds that the criteria for assigning an effective date earlier than November 17, 1999, for an award of a TDIU on an extraschedular basis are not met.

Higher Initial Rating Claim

The Veteran contends that his service-connected lumbosacral spine degenerative disc disease with lumbosacral spine strain and residuals of laminectomy syndrome with radiculitis ("lumbosacral spine disability") is more disabling than currently evaluated.

In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2010).  Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings.  The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history.  38 C.F.R. § 4.2 (2010); see Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  See Fenderson v. West, 12 Vet. App. 119 (1999).

The Veteran's service-connected lumbosacral spine disability currently is evaluated as 40 percent disabling effective November 17, 1999, under 38 C.F.R. § 4.71a, DC 5242 (limitation of motion of lumbosacral spine).  See 38 C.F.R. § 4.71a, DC 5242 (2010).  

VA revised the criteria for evaluating the spine twice during this appeal.  Thus, the Veteran is entitled to the application of the version of the regulation that is more favorable to him from the effective date of the new criteria; only the former criteria are to be applied for the period prior to the effective date of the new criteria.  VAOPGCPREC 3-2000.

From September 23, 2002, lumbar disc disease could be rated either based on a combination of neurologic and orthopedic symptoms or based on incapacitating episodes (whichever method was more favorable).  From September 26, 2003, lumbar disc disease may be rated either based on incapacitating episodes or under the General Formula for rating disabilities of the spine.

Under DC 5292, a maximum 40 percent rating was warranted for severe limitation of motion.  See 38 C.F.R. § 4.71a, DC 5292 (effective before September 26, 2003).  The Board notes, however, that, because a 40 percent disability rating is the maximum available rating under DC 5292 for limitation of motion of the lumbar spine, an increased rating under DeLuca is not applicable for the Veteran's service-connected lumbosacral spine disability under DC 5292 and would not result in a disability rating greater than 40 percent.  The Court has held that, where a musculoskeletal disability currently is evaluated at the highest schedular evaluation available based upon limitation of motion, a DeLuca analysis is foreclosed.  Johnston v. Brown, 10 Vet. App. 80 (1997).  The Board notes parenthetically that DC 5292 was re-numbered to DC 5242 when the rating criteria for evaluating spine disabilities were revised.

Because the Veteran is in receipt of the maximum disability rating available under DC 5292 prior to September 23, 2002, other rating criteria for evaluating back disabilities must be considered.  For example, prior to September 23, 2002, the Veteran's low back disability also could be rated as intervertebral disc syndrome (IVDS).  A 60 percent rating was assigned for IVDS where it was pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of diseased disc with little intermittent relief.  See 38 C.F.R. § 4.71a, DC 5293 (2002).  

As noted, effective September 23, 2002, the Veteran's low back disability could be rated by combining separate ratings for neurologic and orthopedic symptoms or by assessing the duration of incapacitating episodes over the last 12 months.  Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes an incapacitating episode is defined as a period of bed rest prescribed by a physician and treatment by a physician.  See Note 1 following DC 5243.  

Effective September 26, 2003, all rating criteria applicable to the diseases and injuries of the spine under 38 C.F.R. § 4.71a were amended.  See 68 Fed. Reg. 51,454 (August 27, 2003) codified at 38 C.F.R. § 4.71a, DC's 5235 to 5243 (2004).  The amendment changed the diagnostic code numbers used for all spine disabilities and instituted the use of a General Rating Formula for diseases and injuries of the spine for the new DC's 5235 to 5243.

Under the General Rating Formula, a 50 percent rating is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine.  A maximum 100 percent rating is warranted for evidence of unfavorable ankylosis of the entire spine.  These ratings are assigned with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  See generally 38 C.F.R. §§ 4.71a, DC's 5235-5243 (effective September 26, 2003).  Note (1) to the General Rating Formula states that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment should be evaluated separately under an appropriate diagnostic code.  See generally 38 C.F.R. §§ 4.71a, DC's 5235-5243, Note (1) (effective September 26, 2003).

The Board finds that the preponderance of the evidence is against assigning an initial rating greater than 40 percent for the Veteran's service-connected lumbosacral spine disability.  The competent evidence shows that, at worst, the Veteran's service-connected lumbosacral spine disability is manifested by complaints of pain and tenderness in the lumbosacral spine (as seen on VA examination in September 2010).  The Veteran has denied experiencing any IVDS on repeated physical examinations and outpatient treatment visits during this appeal.  There also is no objective evidence that he has experienced any IVDS which could be attributed to his service-connected lumbosacral spine disability.    The Veteran also has never reported that he had been prescribed periods of bed rest by any physician who has seen him for management of his chronic lumbosacral spine disability at any time during the pendency of this appeal.

The Veteran's service treatment records show that he complained of and was treated for low back pain on multiple occasions during active service.  On periodic physical examination in August 1968, he reported a medical history of recurring back pain since 1966 with "possible spur on spine."  Clinical evaluation showed increased lumbar lordosis and left paraspinal tenderness.  There was no separation physical examination available for review.  The Veteran was hospitalized for several days in June 1968 for treatment of his low back pain.  The final diagnosis was mechanical low back pain.  He also was put on several physical profiles for limited duty in June, September, and October 1968 due to chronic low back pain and was restricted from any heavy lifting or prolonged standing or walking.  

On VA examination in March 1969, approximately 1 month after his service separation, the Veteran complained of low back pain and cramps on both legs.  He stated that he first noticed low back pain in 1965 when he was working as a civilian truck driver.  It was noted that he "gradually got rid of most of this pain and felt reasonably comfortable if he did not work too hard but the pain recurred during basic training and he had frequent episodes of pain during his basic training."  He reported being treated 4 or 5 times during basic training with pain pills, traction, heat, and exercises.  He also reported being hospitalized for treatment of low back pain.  He stated that his low back pain increased markedly after he jumped out of a truck on 1 occasion.  He also reported experiencing back pain every evening after work and an aching back when he got up in the morning.  He stated that he had been unable to work since he had been discharged from service 1 month earlier.  His low back pain radiated down his left buttocks to the popliteal space on the left and was quite disconcerting.  Physical examination showed he "ventriflexes" his fingers to 10 inches off the floor with a 15 percent limitation of flexibility in the lumbar spine.  He pointed out a pain spot in the lumbosacral spine just to the left of midline.  There was no swelling or muscle spasm.  The diagnosis was chronic, recurrent strain of low lumbar area to the left of midline.  The Veteran was advised to use exercises with possibly a back brace to relieve his discomfort.

On private outpatient treatment in January 1978, the Veteran complained of aching in the left lower back and pain radiating down the left leg posteriorly.  He reported injuring his back in 1967 while lifting stones on a construction site and reporting this injury to his foreman.  He was self-employed as a school bus driver and his low back pain was much worse when he drove a bus.  Physical examination showed no tenderness to palpation over the cervical or thoracic vertebral bodies, minimal tenderness over L2-4, no sacroiliac joint tenderness, no paravertebral muscle spasm, a good range of motion in all spinal segments, normal straight leg raising ,and normal muscle strength.  The impression was sciatica versus previous disc herniation.  The private examiner stated that the Veteran's pain description was more typical of sciatica possibly aggravated by the position in which he sat to drive the school bus.

A review of private outpatient treatment records from Herbert Rachelson, M.D., received at the RO in February 2000, shows that the Veteran was treated as an outpatient by this physician for low back pain between 1992 and 1999.  Records from Dr. Rachelson dated between 2000-2004 also were received at the RO in August 2004 and show continuing outpatient treatment for the Veteran's low back pain during this time period.  Dr. Rachelson repeatedly diagnosed the Veteran as having low back pain and tried a variety of conservative treatments, including epidural steroid injections and exercises.  These records also show that the Veteran's low back pain waxed and waned during his outpatient treatment visits with Dr. Rachelson.    

On VA examination in March 2005, the Veteran complained of constant pain the lumbar and lumbosacral area with radiation to the right gluteal area and posterior thigh down to the right calf.  He rated his pain as 2/10 on a pain scale (with 10/10 being the worst pain).  The Veteran stated that he used a cane, a back belt support, and a TENS unit.  He also experienced episodes of acute flare-ups that were not precipitated by any activity and occurred approximately 2 times a year, lasting 3-10 days, and requiring treatment in the emergency room usually with injectable medication.  The Veteran stated that he had injured his low back during service when he attempted to board a moving fire truck and had immediate onset of severe pain in the lower back.  He reported that he was treated with traction for 30 days with improvement.  He also continued to experience constant pain.  The Veteran reported having back surgery in August 1991.  

Physical examination of the thoracolumbar spine in March 2005 showed forward bending to 55 degrees, backward bending to 15 degrees, side bending to 10 degrees bilaterally, and rotation to 40 degrees bilaterally.  There was pain throughout the entire arc of motion, both passively and actively and most severe on forward bending.  Repetitive range of motion testing was limited to 40 degrees of forward bending.  Straight leg raising was to 60 degrees on the right and to 70 degrees on the left.  Internal rotation was to 40 degrees.  External rotation was to 55 degrees.  There was sciatic nerve irritation present.  X-rays of the lumbosacral spine showed minimal spondylosis deformans, mild loss of disc height at L4-5 and L5-S1 with vacuum disc at L5-S1, and mild L4-5 and moderate L5-S1 facet arthropathy.  An MRI dated prior to the Veteran's 1991 surgery was reviewed and showed considerable disk protrusion at L4-5 and to a lesser degree at L5-S1 and L3-4.  The VA examiner opined that, although the Veteran had a back disability prior to active service, his low back pain was aggravated further by service.  He also concluded that further back injury definitely occurred while the Veteran was on active service.  The diagnoses were chronic lumbar and lumbosacral strain/sprain with pelvic instability and limited motion, post-laminectomy syndrome with radiculitis, and degenerative disc disease of the lumbar spine.

On VA outpatient treatment in March 2006, the Veteran complained that his low back pain had worsened during recent travel.  The assessment included chronic back pain.  The Veteran was advised to take Tylenol as needed and to use a TENS unit.

In March 2007, the Veteran complained of chronic low back pain which was increasing in severity.  He reported injuring his back while on active service in 1969 and undergoing surgery for a herniated disc in 1991.  Since surgery, he has continued to experience back pain localized to his lower back which he described as "crampy" and "stiff."  His discomfort was worse in the morning and improved slightly with walking.  He rated his pain as 6-7/10 on a pain scale (with 10/10 being the worst pain).  He denied any muscle weakness, bladder or bowel incontinence, or numbness or tingling in any of his extremities.  Physical examination showed a normal unassisted gait.  The VA examiner stated that, although the Veteran had experienced a known injury causing his symptoms, it seemed as though his mood symptoms and lack of sleep might be worsening his symptoms.  The diagnoses included chronic low back pain.

In April 2008, no relevant complaints were noted.  The Veteran reported that he took lorazepam for muscle spasms in his low back.  The assessment included chronic low back pain which appeared stable with lorazepam.  This assessment was unchanged on subsequent VA outpatient treatment in October 2008.

On VA spine examination in May 2008, the Veteran's complaints included back spasms and constant and chronic low back pain.  He rated his pain as 7/10 on a pain scale.  He denied any bowel or bladder control issues.  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA and private treatment records.  He reported a 50% decline in his range of motion.  He also reported using a TENS unit.  His daytime voiding interval was 2-3 hours and he voided 5 or more times per night.  He denied experiencing any flare-ups of his spinal condition.  He used 1 cane for ambulation and was unable to walk more than a few yards.  Physical examination showed pain on motion and tenderness of the left thoracic sacrospinal muscles, no abnormal spinal contour, normal posture and head position, an antalgic gait, kyphosis, normal muscle tone, and no muscle atrophy.  There was normal sensation throughout and normal reflexes.  There also was no thoracolumbar spine ankylosis.  There was negative DeLuca in all planes of motion.  Flexion was to 90 degrees, extension was to 20 degrees, bilateral rotation was to 20 degrees, bilateral flexion was to 25 degrees, and there was pain in the end range of all planes of motion.  The diagnoses were chronic low back pain, a history of disc herniation, multiple injuries especially before surgery in 1991, and no objective neurological disorder.

On VA outpatient treatment in August 2010, it was noted that the Veteran had reported to re-establish care and last had been seen a little over 1 year earlier.  The assessment included chronic back pain with adequate relief from Tylenol.

On VA spine examination in September 2010, the Veteran complained of low back pain.  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA and private treatment records.  The Veteran's 1991 back surgery was noted.  The Veteran reported experiencing moderate weekly flare-ups of low back pain which lasted for hours.  He denied using a back brace.  He also denied any history of urinary or fecal incontinence, neurological problems associated with his back disability, or incapacitating episodes of spine disease.  Physical examination showed his pelvis was tilted to the right, normal head position, an antalgic gait, reverse lordosis and a list, no cervical or thoracolumbar spine ankylosis, and no abnormalities of the cervical sacrospinalis muscles.  There was guarding, pain with motion, and tenderness of the thoracolumbar sacrospinalis muscles.  Range of motion testing of the thoracolumbar spine showed flexion to 60 degrees, extension to 20 degrees, lateral flexion to 20 degrees in each direction, and lateral rotation to 20 degrees in each direction.  There was objective evidence of pain on active range of motion testing.  There was additional limitation of motion after repetitive range of motion testing.  Range of motion testing after repetitive motion showed flexion to 55 degrees, extension to 15 degrees, lateral flexion to 15 degrees in each direction, and lateral rotation to 15 degrees in each direction.  Reflexes were normal.  There was normal muscle tone and no muscle atrophy.  There also was pain and tenderness at L4-5 bilaterally.  X-rays showed mild degenerative disc disease at L4-5 and L5-S1.  The diagnoses were herniated disc L4-5, post lumbar laminectomy, bilateral lumbar radiculopathy, and degenerative joint disease of the lumbar spine.

The Board acknowledges the Veteran's continuing complaints of low back pain.  There is no objective evidence showing that his service-connected lumbosacral spine disability has worsened, however, such that an initial rating greater than 40 percent is warranted under either the former rating criteria (DC 5292, 5293) or the revised rating criteria (DC 5242), effective September 26, 2003, for evaluating spine disabilities.  The Board notes parenthetically that the Veteran currently is receiving the maximum 40 percent rating available under DC 5292.  See 38 C.F.R. § 4.71a, DC 5292 (effective before September 26, 2003).  He has denied consistently that he experiences any incapacitating episodes of spine disease so there is no support for assigning a higher initial rating under either the former DC 5923 or the revised DC 5243 for IVDS.  See 38 C.F.R. § 4.71a, DC 5293 (effective before September 26, 2003); 38 C.F.R. § 4.71a, DC 5243 (effective September 26, 2003).  No spine ankylosis (whether favorable or unfavorable) was noted on any of the VA or private outpatient treatment visits of VA examination reports completed during this time period such that an initial rating greater than 40 percent is warranted under the revised DC 5242.  See 38 C.F.R. § 4.71a, DC 5242 (effective September 26, 2003).  The Veteran also has not identified any other records from this time period which show that his service-connected lumbosacral spine disability worsened.  In summary, absent evidence demonstrating either pronounced IVDS (i.e., a 60 percent rating under the former DC 5293), incapacitating episodes of IVDS having a total duration of at least 6 weeks during the past 12 months (i.e., a 60 percent rating under the revised DC 5243), or ankylosis of the thoracolumbar spine or the entire spine (i.e., a 50 or 100 percent rating under the revised DC 5242), the Board finds that the criteria for an initial rating greater than 40 percent for the Veteran's service-connected lumbosacral spine degenerative disc disease with lumbosacral spine strain and residuals of laminectomy syndrome with radiculitis is denied ("lumbosacral spine disability").

Extraschedular

The Board must consider whether the Veteran is entitled to consideration for referral for the assignment of an extraschedular rating for his service-connected lumbosacral spine disability.  38 C.F.R. § 3.321; Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record).  As noted, the Veteran currently is in receipt of the maximum schedular rating available for his service-connected lumbosacral spine under the former rating criteria for evaluating spine disabilities.  See 38 C.F.R. § 4.71a, DC 5292 (effective before September 26, 2003).

An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). 

If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.

The Board finds that schedular evaluations assigned for the Veteran's service-connected lumbosacral spine disability are not inadequate in this case.  Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected lumbosacral spine disability.  This is especially true because the 40 percent rating currently assigned for the Veteran's lumbosacral spine disability effective November 17, 1999, contemplates moderately severe disability.  Moreover, the evidence does not demonstrate other related factors such as marked interference with employment and frequent hospitalization.  The Board acknowledges that the Veteran has reported consistently to his post-service treating physicians that he was forced to retire from his job as a school bus driver following an on-the-job back injury in 1991.  He has not been employed at any time during the pendency of this appeal, however, and already is in receipt of a TDIU on an extraschedular basis due to his service-connected lumbosacral spine disability.  The Veteran also does not contend, and the evidence does not show, that he has been hospitalized frequently for treatment of his service-connected lumbosacral spine disability.  In light of the above, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

As the preponderance of the evidence is against the Veteran's claims, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for MRSA, claimed as due to VA lack of proper care/negligence in providing hospitalization in May 2007, is denied.

Entitlement to service connection for diabetes mellitus is denied.

Entitlement to service connection for a liver disability is denied.

Entitlement to an earlier effective date than November 17, 1999, for an award of service connection for lumbosacral spine degenerative disc disease with lumbosacral spine strain and residuals of laminectomy syndrome with radiculitis is denied.

Entitlement to an earlier effective date than November 17, 1999, for an award of a TDIU on an extraschedular basis is denied.

Entitlement to an initial rating greater than 40 percent for lumbosacral spine degenerative disc disease with lumbosacral spine strain and residuals of laminectomy syndrome with radiculitis is denied.


REMAND

The Veteran also contends that his depression is related to active service.  He alternatively contends that he incurred depression as a result of his MRSA.  As discussed above, the Board has found that the Veteran is not entitled to VA disability compensation under 38 U.S.C.A. § 1151 for MRSA.  After a review of the claims file, the Board has concluded that additional development is necessary prior to adjudicating the Veteran's secondary service connection claim for depression.

A review of the claims file shows that, in a VA examination request completed in March 2008, the RO requested that the Veteran be examined for depression and asked the VA examiner to opine whether the Veteran had depression secondary to MRSA and to provide a rationale for his or her opinion.  The Veteran had a VA mental disorders examination in April 2008 at which time the VA examiner diagnosed depressive disorder, not otherwise specified, and rule-out mild cognitive impairment.  Unfortunately, this VA examiner stated that no medical opinion had been requested.  A different VA examiner conducted a VA infectious diseases examination of the Veteran in May 2008 and noted that the Veteran's depression had been addressed in the VA mental disorders examination.  Because VA disability benefits for MRSA have been denied on appeal by the decision above, the finding of a secondary relationship between a depressive disorder and MRSA would have no consequence to the Veteran's claim for disability benefits for depression.  Notwithstanding, the Board finds that it would be to the benefit of the Veteran to obtain a medical opinion as to the etiology of his depressive disorder to include whether it may be related to service or his service-connected lumbosacral spine disability.  In short, although the Veteran has alleged that his depression may be related to MRSA, he has not been shown to have the medical expertise to provide such an opinion of etiology.  It is up to VA to assist the Veteran in determining that etiology, if possible.  Because the VA examiner who conducted the Veteran's April 2008 VA mental disorders examination did not provide the requested etiological opinion, the Board finds that this examination must be returned for an addendum which includes the opinion requested in the March 2008 VA examination request, expanded however, beyond the original request regarding the secondary relationship to MRSA.  See 38 C.F.R. § 4.2 (2010); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes). 

The Board also notes that it is not clear from a review of the competent evidence of record whether the Veteran is entitled to a separate compensable rating for objective neurological abnormalities associated with his service-connected lumbosacral spine disability.  See 38 C.F.R. §§ 4.71a, DC's 5235-5243, Note (1).  The competent evidence shows that, although the Veteran does not experience any bowel or bladder impairment as a result of his service-connected lumbosacral spine disability, he has been diagnosed as having foot numbness associated with this disability.  Dr. Bash specifically found in his January 2004 opinion that the Veteran experienced "nerve damage (numbness)" in his feet which was associated with his lumbosacral spine disability.  Dr. Bash also stated that it was clear that the Veteran "has a serious back problem with foot numbness."  The Board observes that the Veteran has denied repeatedly, and the competent evidence has not shown, that he experiences any bowel or bladder impairment as a result of his service-connected lumbosacral spine disability (as seen on outpatient treatment in January 1978 and in March 2007 and on VA examinations in May 2008 and in September 2010).  Although the VA examiner diagnosed no objective neurological disorder following VA examination in May 2008, the Veteran's complaints included numbness in his legs when seen on subsequent VA examination in September 2010.  Given the foregoing, the Board finds that, on remand, the Veteran should be scheduled for appropriate examination to determine whether he experiences any objective neurological abnormalities which may be associated with his service-connected lumbosacral spine disability.

Accordingly, the case is REMANDED for the following action:

1.  Contact the VA Medical Center in Iowa City, Iowa, and request that the VA examiner who conducted the Veteran's April 7, 2008, VA mental disorders examination provide an addendum in which she opines whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's depression is related to active service or any incident of service, to include whether the Veteran's service-connected lumbosacral spine disorder has caused or aggravated (permanently worsened) his depression.  This examiner also should be asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's depression was caused or aggravated (permanently worsened) by methicillin-resistant staphylococcus aureus (MRSA).  This examiner is advised that the Board has determined that the Veteran's MRSA is not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital treatment in May 2007 or an event not reasonably foreseeable, and as such, VA disability benefits have been denied for MRSA.  The claims file must be provided for review.  A complete rationale must be provided for any opinion expressed.

2.  If, and only if, the VA examiner who conducted the Veteran's April 7, 2008, VA mental disorders examination is not available, then schedule the Veteran for appropriate VA examination(s) to determine the nature and etiology of his depression.  The claims file must be provided to the examiner(s) for review.  Based on a review of the claims file and the results of the Veteran's examination, the examiner(s) is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's depression is related to active service or any incident of service, to include whether the Veteran's service-connected lumbosacral spine disorder has caused or aggravated (permanently worsened) his depression.  The examiner(s) also should be asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's depression was caused or aggravated (permanently worsened) by methicillin-resistant staphylococcus aureus (MRSA).  The examiner(s) is advised that the Board has determined that the Veteran's MRSA is not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital treatment in May 2007 or an event not reasonably foreseeable, and as such, VA disability benefits have been denied for MRSA.  A complete rationale must be provided for any opinion expressed.

3.  Schedule the Veteran for appropriate examination(s) to determine whether, and to what extent, he experiences any objective neurological abnormalities which may be associated with his service-connected lumbosacral spine disability.  The claims file must be provided to the examiner(s) for review.  The examiner(s) should be asked to identify any objective neurological abnormalities, including, but not limited to, bowel or bladder impairment which may be associated with the Veteran's service-connected lumbosacral spine disability.  The examiner(s) also should be asked to identify whether the Veteran currently experiences any numbness in any of his extremities which may be associated with his service-connected lumbosacral spine disability.  The examiner(s) also should determine the current severity of any objective neurological abnormalities associated with the Veteran's service-connected lumbosacral spine disability, if possible.  A complete rationale must be provided for any opinion expressed.

4.  Thereafter, readjudicate the Veteran's claim of service connection for depression, including as secondary to the Veteran's lumbosacral spine disorder, as well secondary to MRSA (noting that VA benefits for MRSA have been denied on appeal herein by the Board), and the issue of entitlement to a separate compensable rating for objective neurological abnormalities associated with the service-connected lumbosacral spine disability.  If the benefits sought on appeal remains denied, the appellant should be provided a supplemental statement of the case.  An appropriate period of time should be allowed for response before forwarding the Veteran's claim to the Board.

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. 2010).



______________________________________________
MICHAEL A. PAPPAS
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs