Citation Nr: 1220101	
Decision Date: 06/07/12    Archive Date: 06/20/12

DOCKET NO.  07-01 461	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUES

1.  Entitlement to service connection for a right hip disorder to include right hip strain and bursitis, to include as secondary to the service-connected lumbosacral spine disability.

2.  Entitlement to a disabilitiy rating in excess of 40 percent for spondylolysis of L5 on S1, with grade 1 spondylolisthesis and degenerative arthritis.

3.  Entitlement to a disability rating in excess of 10 percent for paresthesias of the left lower extremity associated with spondylolysis of L5 on S1, with grade 1 spondylolisthesis and degenerative arthritis.

4.  Entitlement to a disability rating in excess of 10 percent for paresthesias of the right lower extremity associated with spondylolysis of L5 on S1, with grade 1 spondylolisthesis and degenerative arthritis. 

5.  Entitlement to a total disability rating for compensation based on individual unemployability (TDIU).

REPRESENTATION

Appellant represented by:	AMVETS


WITNESS AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

A. Hinton, Counsel


INTRODUCTION

The Veteran served on active duty from June 1971 to July 1973.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005, November 2006 and January 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.  

In May 2010 the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing at the RO.  At the hearing, he testified that he was unable to work due to his service-connected disabilities.  In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to a TDIU in increased-rating claims when the issue of unemployability is raised by the record.  Thus, in July 2010, the Board remanded the case to the RO in part for further development of the TDIU claim.  As such, under Rice, the Board has jurisdiction over the Veteran's TDIU claim, which for the purpose of clarity is listed as a separate issue on the title page.

The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Right hip strain and bursitis had its onset in service. 

2.  The preponderance of the evidence is against a finding that the Veteran's spondylolysis of L5 on S1, with grade 1 spondylolisthesis and degenerative arthritis is manifested by unfavorable ankylosis of the thoracolumbar spine, or by incapacitating episodes having a total duration of at least six weeks in the last year.

3.  The preponderance of the evidence is against a finding that the Veteran's paresthesias of the left lower extremity, associated with spondylolysis of L5 on S1, with grade 1 spondylolisthesis and degenerative arthritis, is manifested by moderate or more severe incomplete paralysis of the sciatic nerve.

4.  The preponderance of the evidence is against a finding that the Veteran's paresthesias of the right lower extremity, associated with spondylolysis of L5 on S1, with grade 1 spondylolisthesis and degenerative arthritis, is manifested by moderate or more severe incomplete paralysis of the sciatic nerve. 


CONCLUSIONS OF LAW

1.  Right hip strain and bursitis was incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2011).  

2.  The criteria for a disability rating in excess of 40 percent for spondylolysis of L5 on S1, with grade 1 spondylolisthesis and degenerative arthritis, have not been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.10, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5235-5243 (2011). 

3.  The criteria for a disability rating in excess of 10 percent for paresthesias of the left lower extremity associated with spondylolysis of L5 on S1, with grade 1 spondylolisthesis and degenerative arthritis, have not been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2011).

4.  The criteria for a disability rating in excess of 10 percent for paresthesias of the right lower extremity associated with spondylolysis of L5 on S1, with grade 1 spondylolisthesis and degenerative arthritis, have not been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim.  Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim and that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide.  38 C.F.R. § 3.159(b).  

VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA.  See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004).  VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must provide notice that a disability rating and an effective date will be assigned if service connection is awarded.  Dingess v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

In this decision, the Board in part grants service connection for a right hip disability, which for that claim represents a complete grant of the benefit sought on appeal.  As such, no discussion of VA's duty to notify or assist is necessary in the case of that claim for service connection.

As to the other claims decided below, VA's duty to notify was satisfied by way of letters sent between March 2005 and August 2010.  Those letters fully addressed the notice elements.  Specifically, such letters in combination informed the Veteran of what evidence was required to substantiate his service connection claim and of his and VA's respective duties for obtaining evidence.  The RO has also provided adequate notice of how disability ratings and effective dates are assigned.  

VA has a duty to assist the Veteran in the development of a claim.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011).  The Board finds that all necessary development has been accomplished and the Board will proceed with appellate review.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained service treatment records, and VA and private treatment records.  The Veteran was afforded VA examinations regarding the increased rating claims on appeal.  The Board finds that such VA examinations and opinions obtained are in combination adequate to decide the issues as they include examination and are predicated on a review of the complete record, to include the Veteran's service and post-service treatment records.  The opinions proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and in combination, provided a complete rationale, relying on and citing to the records reviewed.  Therefore, the Board finds that findings from these examination reports are adequate for the purposes of deciding the claim on appeal regarding the parathyroid cancer claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  

Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

VA also provided the Veteran with an opportunity to present testimony on appeal at a Board hearing before a VLJ, which was conducted in May 2010.  In Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that there are two duties imposed by 38 C.F.R. § 3.103(c)(2), (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked are not impacted by the Veteran's receipt of letter that complies with VA's duty to notify.  Here, during the May 2010 hearing, the VLJ discussed the elements that were lacking to substantiate the claims and the Veteran and his representative demonstrated actually knowledge of this information.  The representative's questions specifically elicited responses designed to show that the Veteran's understood the criteria necessary to substantiate his claim.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.)  Accordingly, the Veteran is not shown to be prejudiced on this basis.  

II.  Merits of the Service Connection Claim

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).

Disorders diagnosed after discharge may still be service connected if all of the evidence, including pertinent service records, establishes that the disorder was incurred in service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

If a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, then 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable.  This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence.  If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

As reflected in the Veteran's testimony at the May 2010 Board hearing, he maintains that he has a right hip disorder related to his service-connected lumbosacral spine disability.

Service treatment records contain no evidence of any apparent injury or problem with the right hip.  However, these records do show that the Veteran was treated following an automobile accident in December 1972 for injuries to the low back.  Subsequent service treatment records show complaints of low back pain and a diagnosis of spondylolisthesis of L5 on S1 with Grade I spondylolisthesis.  

Private treatment records in August 2004 show that the Veteran was seen for examination of the right hip with a history of associated pain.  X-rays examination concluded with an impression of findings consistent with previous trochanteric bursitis; no evidence of fracture or joint space abnormality.

The Veteran underwent a VA examination in April 2005 in part for complaints of bursitis of the right hip, asserted to be related to a back condition.  The Veteran reported that bursitis was diagnosed about 1.5 years before, and that he had difficulty lifting his legs due to pain, and had pain daily that interfered with functioning.  X-ray examination revealed trochanteric bursitis.  After examination the assessment was bursitis of the right hip based on examination showing tenderness of the right greater trochanteric bursa.

In September 2010 the Veteran underwent VA examination of his right hip.  He reported that his hip pain was caused by his service-connected back injury [residuals] since 1972 status post motor vehicle accident.  He reported complaints of not being able to walk more than 100 yards secondary to back pain and hip pain.  

After examination the examiner diagnosed a strain of the right hip, and opined that this disorder was not at least as likely as not.  As rationale for the opinion the examiner noted that the Veteran did not work since 2002 and had limited activities secondary to his asthma; and that there were no service records available for review, therefore he could not opine on whether or not the right hip disorder had onset in service.  The examiner further opined that the right hip condition was not degenerative arthritis; and it was not resulting from abnormal gait affected by the back condition.

The report of a December 2011 VA disability benefits questionnaire shows that the Veteran's VA treating physician recorded that he had a diagnosis of a right hip and/or thigh condition diagnosed as hip strain.  The physician noted that the condition began in 1972.  The report contains a number of examination findings relevant to the right hip disorder.  The examiner opined that the right hip condition was at least as likely as not incurred in or caused by the in-service injury.  This opinion was based on the rationale that the Veteran was involved in an automobile accident and this incident may result in strain of the right hip.   

The Board finds that on review of the totality of the evidence on file, that the evidence is at least in equipoise as to whether it is as likely as not that the Veteran's current right hip disorder had an onset in service or was caused by the Veteran's service-connected lumbosacral spine disorder.  To summarize, as discussed above, the Veteran asserts that his right hip disorder is caused by his service-connected lumbosacral spine disability.  The record shows that the Veteran was injured in service due to an automobile accident, with in-service medical evidence of low back injury.  Indeed, the resulting residuals of the automobile accident were so severe that the Veteran received a physical disability discharge seven months later in July 1973.  Most recently, in December 2011 a VA treating physician linked the Veteran's right hip disorder to service, opining that the  right hip condition was at least as likely as not incurred in or caused by the in-service injury caused by the automobile accident in 1972.

Further, the Veteran is competent to identify to a great extent right hip and low back symptomatology and continuity of that combined symptomatology that supports the later diagnoses by medical professionals.  As such, that lay evidence provides highly probative evidence, which along with the medical evidence, is sufficient to establish an etiology of the right hip disorder.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  The Board finds that the totality of the evidence is persuasive and probative of the issue on appeal.  Thus, resolving all reasonable doubt in his favor, the Board finds that service connection is warranted for a right hip disability recently diagnosed as bursitis of the right hip and right hip strain.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

III.  Merits of the Increased Disability Rating Claims

Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2002).  Evaluations of a service-connected disability require review of the entire medical history regarding the disability.  38 C.F.R. §§ 4.1, 4.2.  If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  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).  

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint.  38 C.F.R. § 4.59.  Application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis and when raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability.  Burton v. Shinseki, 25 Vet. App. 1 (2011).  

More recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45).  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.  The Board observes that the Court has noted that when rating spine disabilities under the revised criteria, the Board must discuss any additional limitation of motion that a Veteran has due to pain, weakness, or fatigue.  See Cullen v. Shinseki, 24 Vet. App. 74, 85 (2010).  

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).  In cases such as this in which the Veteran has appealed the initial rating assigned at the time service connection is established, in assigning the initial rating, the Board must consider the propriety of assigning one or more levels of rating- "staged" ratings-from the initial effective date forward, based on evidence as to the severity of disability.  See Fenderson v. West, 12 Vet. App. 119, 126-7 (1999).

The Court has held that even in a claim for an increase in the level of an already service-connected disability, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Thus in deciding the claim here, the Board has considered whether different ratings may be warranted for different time periods based on the evidence of record. 
 
VA regulations require that disability evaluations be based upon the most complete evaluation of the condition that can be feasibly constructed with interpretation of examination reports, in light of the whole history, so as to reflect all elements of the disability.  Medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10 (2011).  

The Veteran's statements describing the symptoms of his service-connected disability are deemed competent evidence.  38 C.F.R. § 3.159(a)(2) (2011).  However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. 

Under VA's Rating Schedule, the applicable criteria for evaluating disability of the spine provide a single set of criteria for rating conditions of the spine, the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula).  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243.  The designated code for vertebral fracture disability is Diagnostic Code 5235.

The RO has evaluated the appealed disability rating under rating criteria for evaluating the musculoskeletal system.  The Veteran's service-connected spondylolysis of L5 on S1, with grade 1 spondylolisthesis and degenerative arthritis is currently rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5236.  Under VA's Rating Schedule, the applicable criteria for evaluating disability of the spine provide a single set of criteria for rating conditions of the spine, the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula), no matter which spine-related diagnostic code applies.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243.

Under VA's Rating Schedule, disabilities of the spine, are to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2011).

Under the General Rating Formula, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243.  Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating; unfavorable ankylosis of the entire spine warrants a 100 percent evaluation.  

The notes listed below apply to the General Rating Formula for Diseases and Injuries of the Spine: Note (1) Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code.

Note (2):  For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees.  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. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  (See also 38 C.F.R. § 4.71a, Plate V).

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees.

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis.

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months.  A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months.  

For purposes of evaluation under Diagnostic Code 5243 (Intervertebral Disc Syndrome), an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4,71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1) (2011).

If intervertebral disc syndrome is presented in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment 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.  38 C.F.R. § 4,71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2).

The Veteran seeks a disability rating in excess of the 40 percent disability rating in effect for his spondylolysis of L5 on S1 with grade 1 spondylolisthesis and degenerative arthritis.  There are separate 10 percent disability ratings in effect and on appeal for associated neurologic impairment of the bilateral lower extremities.  Consideration of any other associated objective neurologic abnormalities is inherent in the evaluation of the claim on appeal for a disability rating in excess of 40 percent currently in effect for the spondylolysis of L5 on S1 with grade 1 spondylolisthesis and degenerative arthritis.  See Note (1) following 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.  
 
Therefore, as part of the current appeal the Board has considered any separately evaluated objective neurologic abnormalities associated with the spondylolysis of L5 on S1 with grade 1 spondylolisthesis and degenerative arthritis.  The Board has reviewed the pertinent competent evidence of record including VA and private treatment records, and the reports of   VA examinations.  The treatment records do not contain evidence materially inconsistent with the evidence contained in the comprehensive VA examination reports.

The Board has reviewed the pertinent competent evidence of record throughout the appeal period from date of claim for increase on December 17, 2004.  

1.  Musculoskeletal Low Back Disability Evaluation Based on Range of Motion

The Board has reviewed the evidence of record throughout the appeal period as reflected in the findings contained in the reports of VA examinations and other medical records on file.  The clinical records reviewed include reports of relevant VA examinations conducted in April 2005, March 2007, and September 2010.  

As the Veteran's spondylolysis of L5 on S1, with grade 1 spondylolisthesis and degenerative arthritis, is currently evaluated as 40 percent disabling on the basis of range of motion, to warrant a rating in excess of that rating, the evidence must show findings productive of unfavorable ankylosis of the entire thoracolumbar spine.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

None of the medical or other competent evidence on file contains findings productive of unfavorable ankylosis of the entire thoracolumbar spine.  Id.  When most recently examined by VA in September 2010, the examiner made findings specifically that there was no ankylosis of the thoracolumbar spine.  At that time, active ranges of motion of the thoracolumbar spine were recorded as flexion from zero to 70 degrees; extension from zero to 20 degrees; left and right lateral flexion from zero.  Based on the foregoing, such evidence does not provide for a disability rating in excess of 40 percent for the low back disability on the basis of limitation of motion at any time during the appeal period.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine; Hart v. Mansfield, 21 Vet. App. 505 (2007).

On review of the totality of the competent medical evidence on file regarding the Veteran's low back symptomatology, a rating in excess of 40 percent is not warranted based on range of motion at any time during the appeal period.  None of the findings would warrant a disability rating in excess of 40 percent for any period under consideration based on range of motion, even with consideration of factors established under DeLuca.  Id.

2.  Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes

The evidence also does not show any extent of incapacitating episodes that would warrant an evaluation on that basis in excess of the now existing 40 percent rating in effect during the appeal period since December 17, 2004.  The evidence does not show that for any part of the appeal that there are incapacitating episodes of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician to any extent that would warrant a disability rating in excess of 40 percent.  38 C.F.R. § 4,71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1) (2011).  

In this regard, the evidence shows that during an April 2005 VA examination the Veteran reported only that he was unable to function during particularly severe episodes of pain, but did not report that he had been required bed rest prescribed by a physician and treatment by a physician.  During a March 2007 VA examination the Veteran reported that he had had incapacitating episodes of a frequency of about once a year lasting about three days.  During a September 2010 VA examination, the report records that the Veteran had incapacitating episodes about one day a month in the last year.

None of the evidence shows that there are incapacitating episodes having a total duration of at least six weeks during any past 12 months period.  Thus, none of the evidence shows any significant incapacitating episodes so as to warrant a rating in excess of the now existing 40 percent in effect, on the basis of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

3.  Associated Lower Extremities Neurologic Symptoms

On appeal are the Veteran's claims to increased ratings for paresthesias of the left lower extremity, currently evaluated as 10 percent disabling, and for paresthesias of the right lower extremity, currently evaluated as 10 percent disabling.  As provided in Note (1), the Board is directed to evaluate any associated objective neurological abnormalities under an appropriate diagnostic code.  38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243.

Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis.  38 C.F.R. § 4.123 (2011).  The maximum rating that may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis.  Id.  

Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis.  38 C.F.R. § 4.124.

In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  Id.

The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id.  The use of terminology such as "mild," "moderate" and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  38 C.F.R. §§ 4.2, 4.6.

Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore, neuritis and neuralgia of that nerve.  38 U.S.C.A. § 4.124a, Diagnostic Code 8520 (2011).  Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost.  Id.  Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which are mild, moderate, and moderately severe in degree, respectively.  Id.  A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy.  Id.  Further, Diagnostic Code 8620 refers to neuritis of the sciatic nerve and Diagnostic Code 8720 refers to neuralgia of the sciatic nerve.

In a December 2006 statement, Edward W. Nalband, M.D., noted that the Veteran experienced bilateral radicular leg pain related to degenerative disc disease, and that the Veteran had leg weakness and pain that increased the longer he sat.

At the March 2007 VA examination, the Veteran reported complaints of tingling and numbness, abnormal sensation, loss of sensation, weakness of the lower extremities, pain and paralysis of the affected parts.  The Veteran reported that prolonged standing or walking numbs the ball of the feet and heels, and prolonged sitting caused loss of sensation in the legs.  Neurological examination revealed abnormal motor function with decreased strength.  Sensory function was normal.  Lower extremity reflexes showed knee jerk 2+ and ankle jerk 1+, bilaterally.

At the Veteran's May 2010 Travel Board hearing the Veteran testified that his legs became numb when walking.  

During VA examination in August 2010, the Veteran reported complaints of numbness in the bilateral lower extremities, and sometimes an electric quality pain that caused him to bend over or sit.  On examination of the lower extremities there was 4 out of 5 weakness, some of which the examiner opined he believed to be real.  The Veteran had decreased temperature perception, and diminished vibration perception below the knees.  There was 2+ ankle and patellar jerks bilaterally.  Gait was minimally antalgic and quite steady and brisk.  The examiner did not find any functional toe dragging or foot drop when walking.  The report concluded with an impression of minimal findings to suggest either sciatic or L4-L5 radiculopathy.

The Veteran is competent to provide evidence regarding the radicular-like symptoms in the bilateral lower extremities, and as to the level of severity of pain or numbness he perceives in the lower extremities.  38 C.F.R. § 3.159(a)(2).  The findings described in the VA examination reports discussed above are consistent with the Veteran's complaints of radicular symptoms originating from the lumbosacral spine area into lower extremities.

The medical findings are, however, shown to consist predominantly of sensory involvement on both sides.  Most recently the examiner at the VA examination in August 2010 concluded with an impression indicating that there were only minimal findings to suggest either sciatic or L4-L5 radiculopathy.  Further, there is no evidence of any atrophy, or other such organic changes of the lower extremities.  The involvement is primarily sensory.

On that basis, the Board finds that the preponderance of the evidence is against granting a disability rating greater than the existing10 percent in effect for each lower extremity, for neurologic manifestations associated with the spondylolysis of L5 on S1, with grade 1 spondylolisthesis and degenerative arthritis.  See 38 C.F.R. § 4.124a, Diagnostic Code 8520.  The lay and medical evidence as discussed above does not show that the impairment of either lower extremity is productive of more than mild incomplete paralysis of the sciatic nerve.  There is no evidence that the impairment approximates moderate or greater impairment in either leg.  

4.  Other Potentially Related Objective Neurologic Abnormalities

In a July 2005 statement, Dr. Nalband reported that the Veteran's bladder symptoms, nocturia and rare incontinence seemed to be attributed to an enlarged prostate.  During a September 2010 VA examination of the spine, the examiner reported that the Veteran had urinary urgency and fecal incontinence, which were not etiologically related to the Veteran's low back disability.  The examiner opined that these problems were not likely ("is less likely as not") related to the low back disability. The examiner opined that these problems were mainly caused by the Veteran's BPH (benign prostate hyperplasia) and might be a side effect of medication taken for asthma.  

Based on the foregoing, the preponderance of the evidence is against a finding of any other neurologic abnormalities being associated with the service-connected low back disability.  The competent evidence does not show and the Veteran has not claimed having any other objective neurologic abnormalities associated with the low back disability, so as to warrant a separate evaluation on that account.  

5.  Conclusions

As to the grants here, in light of Hart v. Mansfield, the Board has considered whether a staged rating is appropriate at any time during the entire period under consideration beyond what is decided here.  In this case, however, the medical evidence associated with the relevant periods does not include any that would warrant an evaluation in excess of the ratings granted here.  See Hart supra.  As such any additional staged ratings are not warranted for that disability.

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  Here, the Board finds that the rating criteria contemplate the Veteran's low back disability claim decided here.  The Veteran has not described any unusual or exceptional features associated with his low back disability and associated lower extremity neuropathies.  The rating criteria are therefore adequate to evaluate the disability, and referral for consideration of extraschedular rating is not warranted.  


ORDER

Service connection for right hip strain and bursitis, is granted.

A disability rating in excess of 40 percent for spondylolysis of L5 on S1, with grade 1 spondylolisthesis and degenerative arthritis, is denied. 

A disability rating in excess of 10 percent for paresthesias of the left lower extremity, associated with spondylolysis of L5 on S1, with grade 1 spondylolisthesis and degenerative arthritis, is denied.

A disability rating in excess of 10 percent for paresthesias of the right lower extremity, associated with spondylolysis of L5 on S1, with grade 1 spondylolisthesis and degenerative arthritis, is denied.

REMAND

For the reasons outlined below, a remand is necessary for purposes of further development with respect to the Veteran's claim of entitlement to TDIU.  In light of the rating decisions above, the Veteran meets the combined schedular rating for TDIU under 38 C.F.R. § 4.16(a) (2011).  See also 38 C.F.R. § 4.25 (2011).  Further, given the grant of service connection for a right hip disability, the rating assignment by the RO is inextricably intertwined with the TDIU claim and should be completed prior to adjudication of the TDIU claim.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).  A determination regarding the TDIU claim must be adjudicated in connection with the RO's adjudication of the rating for the service-connected right hip disability.  

In addition, as noted in the July 2010 decision, at the May 2010 Board hearing the Veteran asserted a claim of service connection for left hip disability.  To date, no action has been taken with respect to this claim.  Generally, the Board would refer this matter to the RO for consideration in the first instance.  Here, however, the adjudication of the claim of service connection left hip disability may impact the TDIU claim presently before the Board.  Thus, the Board finds that the left hip disability claim must be remanded to the RO for initial consideration because it is inextricably intertwined with the Veteran's TDIU claim.  See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim.).

Further, pursuant to VA's duty to assist, VA must assist a claimant in obtaining evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2011).  The Board finds that pursuant to VA's duty to assist VA must obtain a medical opinion to determine whether it is at least as likely as not that his service-connected disabilities separately or in combination render him unable to secure or follow a substantially gainful occupation.  Soliciting such an opinion is necessary to adjudicate this claim.  See 38 U.S.C.A. § 5103A; see also Colayong v. West, 12 Vet. App. 524, 538-40 (1999); Friscia v. Brown, 7 Vet. App. 294, 297 (1994).

None of the VA examination reports on file adequately address the question of whether it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, either alone or in the aggregate, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2010).  

Thus, the Board has no discretion and must remand this matter to afford the Veteran a VA examination, and the examination report should address the above inquiry.  See 38 U.S.C.A. § 5103A; see also Colayong v. West, 12 Vet. App. 524, 538-40 (1999); Friscia v. Brown, 7 Vet. App. at 297.

On remand, the RO should conduct all appropriate notification and development, to include providing the Veteran with proper notice under VCAA, obtaining any pertinent outstanding treatment records, and obtaining a medical opinion to determine whether it is at least as likely as not that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. After all appropriate development has been completed the Veteran's TDIU claim should be adjudicated based on all evidence of record.

Finally, records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically in the claims files.  Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Since the claims file is being returned to the RO, the file should be updated to include VA treatment records not on file.  See 38 C.F.R. § 3.159(c)(2) (2011); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).  The Board reviewed Virtual VA records, which did reveal several sets of  medical records material to the claim.  Any such Virtual VA records not in the claims file should be added by placing a paper copy in the claims file.  Any private treatment records not on file and pertaining to the TDIU claim should also be obtained prior to any examination.

Accordingly, the case is REMANDED for the following action:

1.   The RO should provide the Veteran with appropriate notice of the evidence and information needed to establish entitlement to service connection for left hip disability and to a TDIU and VA's and the Veteran's responsibilities to provide evidence and information in support these claims.  The Veteran should be provided an appropriate amount of time to respond to this notification.  This notification should be associated with the claims folder. 

2.  Request that the Veteran identify any outstanding VA or private treatment records pertaining to his service-connected disabilities relevant to the claim for TDIU.  Take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment not already in the claims file, to specifically include such records from the VA including records stored on Virtual VA but not in the claims file, and associate all obtained records (paper copies) with the claims folders.

3.  Notify the Veteran that he may submit statements from himself and others who have observed the Veteran describing their impressions regarding the onset of his left hand problems and the impact of his service-connected disabilities on his ability to work.  

4.  After completion of the above development, schedule the Veteran for a VA examination to determine the nature, onset and/or etiology of any left hip disability found to be present and entitlement to TDIU.  The claims folder and a copy of this Remand must be provided to and reviewed by each examiner in conjunction with these examinations.  

The examiner should conduct any appropriate tests and studies required.  The examiner must opine as to whether the Veteran has a left hip disability that is related to or had its onset in service or was caused or aggravated by a service-connected disability or disabilities.

The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, either alone or in the aggregate, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities.  

For this purpose, notify the examiner that the Veteran's service-connected disabilities currently consist of (1) spondylolysis of L5 on S1, with grade 1 spondylolisthesis and degenerative arthritis; (2) facial scars; (3) paresthesias of the left lower extremity associated with spondylolysis of L5 on S1, with grade 1 spondylolisthesis and degenerative arthritis; (4) paresthesias of the right lower extremity associated with spondylolysis of L5 on S1, with grade 1 spondylolisthesis and degenerative arthritis; (5) high frequency hearing loss; (6) scar of the right knee; (7) a right hip disability diagnosed to include right hip strain and bursitis; and, if appropriate, left hip disability.  

Only the currently service connected disabilities can be considered in rendering the opinion as to the Veteran's employability.  If the examiner finds that he or she is unable to provide any portion of the requested opinion without resorting to speculation, he or she should give the reasons and bases for this determination and identify any outstanding evidence that may enable him or her to provide the requested opinions.  All findings and conclusions, and the rationale for all opinions expressed by the examiner should be provided in a legible report.

5.  After assigning a disability rating for the Veteran's right hip disability diagnosed to include right hip strain and bursitis, adjudicate whether service connection is warranted for left hip disability and then readjudicate the Veteran's claims of entitlement to TDIU.  If the benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case and provide the Veteran and his representative an opportunity to respond.  

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).



______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs