Citation Nr: 1134810 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 06-15 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to a schedular disability rating in excess of 40 percent for degenerative disc disease (DDD) of the lumbosacral spine. 2. Entitlement to an extra-schedular disability evaluation in excess of 40 percent for degenerative disc disease (DDD) of the lumbosacral spine. 3. Entitlement to a separate evaluation for genitourinary disability, as secondary to the service-connected DDD of the lumbosacral spine. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran had active duty service from April 1992 to November 1994. This appeal is before the Board of Veterans' Appeals (Board) from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which denied a rating in excess of 40 percent for degenerative disc disease of the lumbar spine. The Board remanded the claim for additional development in February 2009. In August 2010, the Board denied the increased rating claim for DDD and remanded for extra-schedular consideration. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In February 2011, pursuant to a Joint Motion for Remand, the Court remanded the claim to the Board. The issues of entitlement to TDIU and entitlement to an extra schedular evaluation are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. For reasons described below, this remand will also address the issue of entitlement to a separate evaluation for genitourinary disability, pursuant to AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDING OF FACT Degenerative disc disease of the lumbosacral spine is manifested, at worst, by forward flexion to 35 degrees, without any findings of unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for a schedular rating in excess of 40 percent for DDD of the lumbosacral spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 4.71a, Diagnostic Codes 5237 and 5243 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a July 2005 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claim for increased rating for the lumbosacral spine. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the July 2005 letter complied with this requirement. The Veteran has substantiated his status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability-rating and effective-date elements, in a March 2006 letter. The letter was not timely as it did not predate the rating decision, however as the claim decided herein is being denied, no new disability rating or effective date is being assigned. Consequently, any question of non-compliance or prejudice with regard to the Dingess notice requirements regard is moot. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified VA and private treatment records. The Veteran was also afforded VA examinations in August 2005, June 2006 and January 2010 as to the severity of his lumbosacral spine disability. These examinations were adequate because they were based on consideration of the Veteran's prior medical history and examinations and also described the disability in sufficient detail to allow the Board to make a fully informed evaluation. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for increased rating for lumbosacral spine disability is thus ready to be considered on the merits. Legal Criteria and Analysis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as explained below, the disability picture has not significantly changed, and a uniform 40 percent rating is proper. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. §§ 3.102, 4.3 (2010). In addition, where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2010). The Court held that in evaluating a service-connected disability, functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 must be considered. The Court also held that, when a Diagnostic Code does not subsume 38 C.F.R. §§ 4.40 and 4.45, those provisions are for consideration, and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The Veteran is assigned a 40 percent rating for DDD, also referred to as a back disability, under Diagnostic Code 5237. Under the current rating criteria, degenerative arthritis of the spine (designated at Diagnostic Code 5237) is rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine. Intervertebral disc syndrome (designated at Diagnostic Code 5243) is rated either pursuant to the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in a higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Under the general rating formula, a 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note 1 provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note 2 provides that, for VA compensation purposes, the combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Under DC 5243 for intervertebral disc syndrome, a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 states that for purposes of evaluations under diagnostic code 5243 an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note 2 states that if intervertebral disc syndrome is present in more than one spinal segment provided that the effects in each spinal segment are clearly distinct each segment is to be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Factual Background and Analysis A rating action in June 1995 awarded service connection for a low back condition based on service treatment records indicating treatment on numerous occasions for back pain. A 20 percent rating was assigned based on the findings from a December 1994 VA medical examination. The Veteran continued to be treated for low back pain by VA and private physicians. A rating action in July 2001 increased to 40 percent the rating assigned for what was then recharacterized as degenerative disc disease (DDD) of the lumbar spine. In July 2005, the Veteran filed a claim for an increased disability rating. In a rating decision of September 2005, the RO continued the disability rating for DDD of the lumbosacral spine at 40 percent disabling. The Veteran appealed that decision. An August 2005 treatment record indicates that following a magnetic resonance imaging (MRI), the Veteran was diagnosed with L3/4, L4/5 disc annulus tear. Thereafter, VA treatment records reported the Veteran underwent L3/4, L4/5 nucleoplasty disc decompression followed by intradiscal electrothermal therapy (IDET) for his back in September 2005. A VA examination was conducted in August 2005, during which Veteran complained of constant pain in the lumbosacral area. He reported acute episodes occur only every two years which produce pain so severe that he requires going to the emergency room or hospital. He denied the use of a brace or back supports as well as wheelchair, cane, or crutches. He indicated he experiences weakness and giving out in addition to pain on walking two blocks, stiffness and limited motion of the lower back, pain increased by assuming a static position such as sitting or standing in one place for more than 30 minutes, and considerable difficulty driving and sitting in one position accentuates his back and leg pain. On physical examination, the examiner found active forward flexion to 75 degrees, extension to 17 degrees, left and right lateral bending to 15 degrees, each with complaints of pain. Also, rotation was noted to be to 40 degrees bilaterally with no subjective complaints of pain. Following repetitive activity, forward flexion was noted to be to 75 degrees, backward extension to 20 degrees, lateral flexion was to 20 degrees bilaterally, and rotation was to 45 degrees bilaterally. An MRI report at that time found shallow central disc protrusions seen at the L3-5 and L4-5, causing mild narrowing of the spinal canal without definite impingement of neural struction, and mild broad disc bulge at L5- S1. An X-ray report from that time found degenerative disc disease, lumbar spine, chronic lumbar and lumbosacral strain/sprain, with restricted motion, and a broad based disc bulge at L5-S1 with mild spinal stenosis. During a June 2006 VA examination, the Veteran stated his pain was relieved for one to two months after surgery, but has since progressively gotten worse. The Veteran stated he was in bed for approximately eight days last December, but it was not prescribed by a physician. The examiner noted no thoracolumbar spine ankylosis. Upon physical examination, the Veteran had active flexion to 90 degrees, extension to 25 degrees, left lateral flexion to 35 degrees, right lateral flexion to 33 degrees, and right and left lateral rotation to 35 degrees. After repetitive motion, flexion was to 85 degrees, extension to 20 degrees, and left lateral rotation to 40 degrees, left lateral flexion to 25 degrees, and right lateral flexion to 30 degrees. An April 2006 MRI report found no significant changes in appearance or progression since the previous examination. The diagnosis was DDD of the lumbar spine with bilateral radiculopathic symptoms and postoperative residuals. During a January 2010 VA examination, the Veteran reported he had progressively worse low back problems and that he had used a TNS unit for several years and medication with poor results. The examiner noted prior surgeries including a discectomy/laminectomy in September 2005. The Veteran reported a history of urinary urgency, urinary frequency, numbness, paresthesias, leg or foot weakness, fatigue, decreased motion, stiffness, weakness, spasms, and severe constant pain with radiation to both lower extremities. He reported flare-ups every two to three weeks for one to two days, with activity as a precipitating factor, and bedrest as an alleviating factor. On examination, the examiner found bilateral spasms, guarding, pain with motion, tenderness, weakness, muscle spasm, and localized tenderness or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. Active range of motion findings included flexion to 45 degrees, extension to 10 degrees, left lateral flexion to 10 degrees, left lateral rotation to 15 degrees, right lateral flexion to 10 degrees, and right lateral rotation to 15 degrees. After repetitive motion, range of motion findings were flexion to 35 degrees, extension to 10 degrees, left lateral flexion to 10 degrees, left lateral rotation to 15 degrees, right lateral flexion to 10 degrees, and right lateral rotation to 15 degrees. An X-ray study from that time was noted as unremarkable exam. The diagnosis was status post multilevel lumbar discectomy with residual radiculitis, and chronic lumbar strain/sprain with limited motion. The examiner noted that his disability prevented chores, shopping, exercise, and sports, and cause severe effects on recreation, traveling, bathing, dressing, and grooming. Additional private and VA treatment records dated between November 2004 and December 2008 show treatment for chronic back pain requiring pain management and at times epidural and spinal injections. Based upon a review of the evidence of record, the Board finds that the Veteran's back disability does not warrant a rating in excess of 40 percent. Indeed, his back disability is currently manifested by, at most, forward flexion to 35 degrees with pain which would only warrant a 20 percent rating. However, the Board will not disturb the Veteran's current disability rating of 40 percent. The aforementioned evidence does not reflect any findings that would warrant a rating in excess of 40 percent under the criteria of the General Rating Formula for this time period. None of the competent medical evidence of record, including the January 2010 VA examination, shows that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2010). While the Veteran claimed to have more than eight days of incapacitation, the provisions for evaluating intervertebral disc syndrome are also not for application for the Veteran's service- connected low back disability during this time period because he was not shown to have any incapacitating episodes that required treatment and bed rest prescribed by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1 (2010). The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-07. Competent evidence during this time period reflects that the currently assigned 40 percent rating already compensates the Veteran for the extent of functional loss resulting from any such symptoms. In this regard, the Board notes that the January 2010 VA examination findings detailed that repetitive range of motion testing did produce loss of motion due to pain. However, that loss would not equate to total unfavorable ankylosis of the thoracolumbar spine warranting a 50 percent disability rating. As a final matter, the Board notes that the Veteran is currently rated separately for neurological symptoms associated with his back disability, and those ratings are not presently on appeal. In conclusion, the Veteran's claim for entitlement to a rating in excess of 40 percent must be denied. The Board has considered staged ratings, under Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a schedular rating in excess of 40 percent for degenerative disc disease (DDD) of the thoracolumbar spine is denied. REMAND In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part and parcel of an increased rating claim when the issue of unemployability is raised by the record. In this case, the Veteran is in receipt of service connection for a lumbosacral spine disability. At the January 2010 VA examination it was noted that the Veteran was not employed as he had retired. In addition, the examiner noted that according to the requirements as set forth by the U.S. Department of Labor, the Veteran was not capable of a medium or heavy occupation, and that with respect to a light occupation, the Veteran could not be ambulatory for two thirds of an eight hour work day. The examiner further noted he was not capable of carrying or lifting 15 pounds on a frequent basis or 25 pounds occasionally and was therefore not qualified to engage in that level of work. Regarding a sedentary occupation, the examiner noted that even though he could probably handle seven pounds on a frequent basis, the Veteran was not able to sit for two thirds of an eight hour work day as would be required by the job description. The issue of entitlement to TDIU has been raised but was not considered by the RO, and the case must be returned to the RO for initial consideration of this claim. Indeed, the Board finds that while the Veteran is retired, the July 2010 examiner noted, in essence, that the Veteran would not be able to be employed should he choose to want to work. In regard to the claim for entitlement to an extraschedular rating, the Board notes that in the case of Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. The Court also noted that its holdings in that case are precedent to be followed in all cases presently in remand status. Id. In a remand of August 2010, the Board instructed the RO to refer the Veteran's claim to the Chief Benefits Director of VA's Compensation and Pension Service for extraschedular consideration. Thereafter, if the claim remained denied, the RO was to issue a supplemental statement of the case (SSOC). The record reflects that while the claim was referred to the Chief Benefits Director of VA's Compensation and Pension Service and their recommendation was received, an SSOC has not been issued. Therefore, the Board finds that there has not been full compliance with the remand of August 2010 and the claim must be remanded for the issuance of an SSOC. The Board also notes, that, in a January 2010 VA examination report, urinary urgency and urinary frequency were noted to not be "unrelated" to the underlying spine disability. This comment was included in the "Review of Systems" portion of the examination report and was not accompanied by any objective testing addressing the symptoms and severity of any genitourinary disability. At a minimum, however, this comment raises the question of whether a separate evaluation is warranted for such disability, and the Board has determined that this matter should be addressed as a separate issue pursuant to AB v. Brown, supra. This issue cannot be meaningfully resolved until a VA examination addressing the disability is conducted on remand. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be furnished with a 38 C.F.R. § 3.159(b) notice letter as to his TDIU claim. The Veteran should also be notified of VA's practices in assigning disability evaluations and effective dates for those evaluations. 2. In reviewing any responses from the Veteran, the RO/AMC must consider whether additional development (e.g., a request for treatment records, or a new VA spine examination) is warranted, although no such development is required by this remand. 3. The Veteran must then be afforded a VA genitourinary examination, with an appropriate examiner who has reviewed the claims file. The examination should specifically address the matters of urinary urgency and urinary frequency. Based upon the Veteran's contentions, the claims file review, and the examination results, the examiner must address: 1) the specific symptoms and severity of any current genitourinary disability, and 2) whether it is at least as likely as not (e.g., a 50 percent or greater probability) that such disability was either caused or worsened by the service-connected spine disorder. All opinions must be supported by a complete rationale in a typewritten report. 4. Then, the RO/AMC must adjudicate the TDIU claim and readjudicate the issue of entitlement to an extraschedular evaluation for the spine disability. The RO/AMC must also address the issue of whether a separate evaluation is warranted for secondary genitourinary disability. If any determination is less than fully favorable, a Supplemental Statement of the Case must be issued prior to recertification of this case to the Board. The Veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs