Citation Nr: 1218445 Decision Date: 05/23/12 Archive Date: 05/31/12 DOCKET NO. 06-02 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) for service-connected lumbar spine disability, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned at a February 2008 Travel Board hearing. The hearing transcript is of record. In May 2010, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. In May 2012, after the case was certified on appeal to the Board, the Veteran submitted additional medical evidence, pertinent to the left knee disability claim. However, the Veteran included a waiver of initial RO consideration of the evidence, and it is duplicative of evidence previously considered by the originating agency. The issue of entitlement to service connection for a left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The manifestations of the Veteran's service-connected lumbar spine disability do not present such an exceptional disability picture with such related factors as marked interference with employment, as to render impractical the application of the regular schedular standards and result in total impairment. CONCLUSION OF LAW The criteria for an extra-schedular evaluation for the Veteran's service-connected lumbar spine disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.321 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION 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. 2011) defined VA's duty to assist a 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) (2011). 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; and (3) that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 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 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). The Court had held that at a minimum, adequate VCAA notice in an increased rating claim required that VA notify the claimant that, to substantiate such a claim: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). The Federal Circuit has overturned the requirement that VA provide notice that the claim could be substantiated by evidence of a disability's impact on daily life and that VA provide notice with regard to potential diagnostic code criteria (element 2). Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The RO provided VCAA notice in letters dated in November 2003, June 2004, August 2004, January 2007, and April 2011. The November 2003, June 2004, August 2004, and January 2007 letters provided some information as to the evidence needed to substantiate entitlement to increased ratings, what evidence the Veteran was responsible for providing and what evidence VA would undertake to obtain. The April 2011 letter provided information as to the evidence needed to substantiate entitlement to an extraschedular rating. The Veteran was notified of all elements of the Dingess notice in the January 2007 letter. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, VA's notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. There was a timing deficiency in that the January 2007 letter was sent after the initial adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The timing deficiency was cured by readjudication of the claim in a supplemental statement of the case issued in March 2012. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The Duty to Assist 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). VA has obtained records of treatment reported by the Veteran, including service treatment records and VA treatment records. Additionally, the Veteran was provided proper VA examinations in March 2003, November 2004, April 2006, and June 2011, to evaluate his low back disability, and there is no evidence or contention that there has been a change in the Veteran's symptoms since the last examination in June 2011. In May 2010, the Board remanded the Veteran's claim to schedule the Veteran for another VA examination, and to refer the case to the Director of the VA Compensation and Pension Service (Director) for consideration of an extraschedular rating for the Veteran's low back disability. The RO scheduled the Veteran for a VA examination in June 2011, which he attended. Furthermore the case was referred to the Director in December 2011, and the Director considered the case in March 2012. Therefore, the AOJ substantially complied with the Board's May 2010 remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required where there was substantial compliance with Board's remand instructions). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2011). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The Board has jurisdiction to review determinations of the Director of Compensation and Pension or Undersecretary for Benefits regarding a Veteran's entitlement to an extraschedular rating. Anderson v. Shinseki, 23 Vet. App. 423, 42-30 (2009). Analysis The record includes a November 2004 VA examiner's report which states that the Veteran's lower back disability was manifested by limited range of motion. The examiner reported the Veteran's flexion was 70 degrees before pain limits any further movement; extension of 20 degrees limited by pain; lateral bending to 30 degrees on each side; and rotation to 40 degrees on each side. The examiner noted that the Veteran's degenerative changes were the likely reason for his pain and limited motion. The examiner did not note ankylosis of the spine to any extent. The record also contains the report of an April 2006 VA physician who examined the Veteran's lumbar spine condition. The examiner reported that the Veteran's gait was described as antalgic and the examiner observed that the Veteran used a cane to walk and was unable to walk more than a few yards. The Veteran reported moderate pain that occurs on a daily basis. No ankylosis of the spine was noted in the thoracolumbar or cervical spine. Using a goniometer, the examiner measured the Veteran's thoracolumbar active motion ranges of motion as flexion from 0-to-30 degrees; extension from 0-to-5 degrees; left and right lateral flexion from 0-to-5 degrees; right and left lateral rotation from 0-to-5 degrees. Pain was described to begin at 0 degrees in all movements. Passive flexion was measured at 0-to-30 degrees with pain beginning at 10 degrees; and, extension from 0-to5 degrees with pain beginning at 0 degrees. An additional 10 degrees of limitation of motion on all planes was reported on repetitive use of the back due to pain. The diagnosis was lumbar spine pain, and the examiner noted that the Veteran stated he had not been employed since 2000 because of joint pain. The examiner also noted the back had a moderate effect on the Veteran's daily activities, such as shopping, exercise, feeding, bathing, dressing, and grooming. As noted above, a higher 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Because there was no evidence of record, showing ankylosis of any nature or degree, the Board found that the criteria for a disability rating in excess of 40 percent were not met. The Board also found that a rating in excess of 40 percent was not warranted under the provisions of DeLuca v. Brown. In this regard, the April 2006 examiner noted an additional 10 degrees of limitation of motion on all planes was reported on repetitive use of the back due to pain, and that the pain had a moderate effect on the Veteran's ability to conduct normal daily activities. The Veteran denied using a back brace, but complained that that he could not walk further than a few yards and that prolonged periods of sitting aggravated his painful lumbar back. The examiner also noted that the Veteran's effort in performing range of motion examinations was poor. In sum, the Board found that the objective medical evidence of impairment of function due to pain alone did not serve to allow for the assignment of additional disability in excess of the 40 percent which had already been assigned. The Board also found that the Veteran's report during the April 2006 VA examination, that he could not work due to his joints, including his service-connected back disability, and his report during his February 2008 hearing, that he could not work due to his back pain, suggested that the disability caused marked interference with employment beyond that contemplated by the schedular evaluation of 40 percent. Accordingly, the Board remanded the claim for referral to the Director of Compensation and Pension Services (Director) for consideration of an extraschedular rating. Prior to the Director rendering his opinion, the Veteran was afforded another VA examination of his spine in June 2011. The examiner stated that he could not determine, without resorting to mere speculation, whether the Veteran was able to secure gainful employment with his low back disability. He noted specifically that, based on the Veteran's symptoms and the examination findings, he could not assume that the Veteran would be able to tolerate the type of full-time work he did in the past. However, he did state that he believed the Veteran may have been able to do part-time, sedentary work, in which he used a special chair that was not too low, and which would afford him frequent breaks. In his March 2012 report, the Director of Compensation and Pension Services noted that there were no incapacitating episodes requiring bed rest prescribed by a physician for the Veteran's lumbar spine disability documented in the medical evidence of record, nor was there any evidence of any hospitalizations, surgical procedures or emergency room visits to treat the Veteran's lumbar spine condition. It was also noted that the Veteran had applied for and been denied Social Security Administration (SSA) disability benefits. The Director also noted that the available evidence did not demonstrate that the Veteran's service-connected lumbar spine disability created marked interference with any past employment or prevented him from engaging in work-related activities. The Board finds that the Veteran's disability, as discussed above, is manifested by symptomatology contemplated by the rating criteria which have been applied in this case. The Veteran contends that his low back disability prevents him from working, but the Board finds that the evidence of record does not show that the Veteran's low back disability alone has caused marked interference with employment. In this regard, the Veteran reported during his April 2006 VA examination that he had not worked since 2000, secondary to pain in the joints. However, the medical evidence shows that the Veteran has several other non-service-connected disabilities of the joints, including bilateral shoulder disabilities, bilateral hand disabilities, bilateral knee disabilities, a cervical spine disability, and a neck disability that contribute to his overall reduction in health. There is also no evidence showing that the Veteran was in jeopardy of losing a job, fired from a job, or denied employment solely due to his low back disability. Furthermore, the only medical expert to render an opinion on the subject, concluded that although the Veteran may not have been able to tolerate the type of full-time work in sales, he did in the past, he could possibly do part-time, sedentary work. There is also no evidence of record showing frequent periods of hospitalization due to the Veteran's low back disability. The rating criteria applied in this case take into account the pain, limitation of function reported in the record. Furthermore, the rating schedule contemplates the effects of the disability on the Veteran's ability to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2011). Accordingly, the Board finds that an extraschedular rating is not warranted. 38 C.F.R. § 3.321(b). ORDER An extraschedular rating is denied. REMAND The Veteran was afforded a VA examination of his joints, including the knees, in November 2004. He reported that he injured his low back, left shoulder, both hands, and lower leg in a motor vehicle accident (MVA) during active duty in 1967. The Board notes that the Veteran was service-connected at that time for a low back disability, which was deemed to have occurred as a result of his in-service MVA. The examiner noted that service treatment records showed that the Veteran was treated for minor contusions and minor abrasions of the left shin, but no specific treatment was rendered, and there was limited, if any, significant pathology of the Veteran's complaint areas. It was also noted that in 2003, the Veteran underwent a left knee arthroscopy, due to left knee pain and mechanical symptoms. X-rays of the left knee revealed mild degenerative changes. The Veteran also argued at that time that his knee disabilities were secondary to his service-connected low back disability. The examiner opined that the Veteran's left knee disability was not related to his service-connected low back disability. He did not provide a rationale for the opinion. Furthermore, he did not render an opinion as to whether the left knee disability was directly related to service, including the in-service left knee injury. The Veteran was afforded another VA examination of the joints in April 2006. It was again noted that the Veteran had a MVA during active duty in 1967, during which he sustained a back injury and other contusions and bruising, and it was noted that there was still X-ray evidence of mild degenerative joint disease of the knees. The examiner opined that the Veteran's current symptoms and complaints were not consistent with any relationship between the in-service MVA and the Veteran's knees, as well as other joints. He did not provide a rationale for the opinion. In accordance with the Board's May 2010 remand, the Veteran was afforded a VA examination in August 2010, to determine whether his left knee degenerative changes were caused or aggravated by a disease or injury during his active military service. The Veteran continued to report that he injured his left knee during a MVA during active duty in July 1967. The Veteran also reported another left knee injury during a second MVA in November 1986, for which he underwent surgery in 1987. He also reported that he underwent arthroscopic surgery to the left knee in April 2003. The August 2010 examiner opined that the Veteran's left knee disability was not caused by or a result of an in-service illness, injury or event. He specifically found that the Veteran's reported in-service left knee injury did not result in or aggravate his left knee condition, but rather the left knee injury reported at the time of the post-military discharge MVA, was likely the cause of the Veteran's current knee condition, and the need for arthroscopic surgery in April 2003. His rationale was that there was no evidence of any evaluation or management/treatment of the Veteran's reported left knee injury in the service treatment records. He also noted that there was no history of an in-service left knee injury, which required evaluation, treatment, and eventual arthroscopic surgery in the claims file. The examiner also noted that the Veteran's radiographs were reported as demonstrating mild degenerative changes of the left knee, and that the April 2003 operative note did not describe severe degenerative changes of the knee. In essence, it appears that the examiner discounted the Veteran's reports of his in-service left knee injury because there was no evidence of the type of treatment or management that he assumed would be required for such an injury in the service treatment records, and no reported history of the claimed in-service injury in the claims file. A Veteran's statements may not be discounted solely on the basis of the lack of confirmation in the medical records. Furthermore, service connection is possible for disabilities first identified after service. 38 C.F.R. § 3.303(d). The Board notes that it is plausible that the Veteran's in-service left knee injury developed into a discernable disability after service, and independent of the post-service MVA in 1986. Accordingly, the Board finds that the August 2010 VA examiner's opinion is inadequate for rating purposes. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran's left knee degenerative joint disease is necessary. See 38 C.F.R. § 4.2 (2011). The appellant is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2011). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination to determine the etiology of his current left knee disability. The examiner should review the claims folder and note such review in the examination report or in an addendum. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's left knee degenerative joint disease is etiologically related, in whole or in part, to the Veteran's active military service. To the extent practicable, the examiner should also provide an opinion as to whether and to what degree any injury which may have occurred after the Veteran's discharge in August 1967 affected his current left knee condition. 2. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's left knee degenerative joint disease was caused or chronically worsened by service-connected disability, to include degenerative disc disease of the lumbar spine. The examiner should provide a complete rationale for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report symptoms and injuries, as well as diagnoses provided to him by physicians. If the Veteran's reported history is discounted, the examiner should provide a reason for doing so. A Veteran's statements may not be discounted solely on the basis of the lack of confirmation in the medical records. 3. If the benefit sought on appeal is not granted, a supplemental statement of the case should be issued. The case should be returned to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs