Citation Nr: 1222167 Decision Date: 06/25/12 Archive Date: 07/02/12 DOCKET NO. 06-06 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating higher than 40 percent for a low back disability, degenerative disc disease of the lumbar spine with residuals of a fracture of the L-5 transverse process 2. Entitlement to an initial rating higher than 20 percent for associated radiculopathy of the left lower extremity. 3. Entitlement to an initial rating higher than 20 percent for associated radiculopathy of the right lower extremity. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Jeany Mark, Attorney at Law ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1950 to November 1953. This appeal to the Board of Veterans' Appeals (Board) originated from a July 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. That decision denied the Veteran's petition to reopen his claim for service connection for degenerative joint disease of the cervical spine with spondylosis and a partial fusion at C2-3-4 and degenerative disc disease at C5-6 and C6-7. That decision also denied his claim for a rating higher than 40 percent for his low back disability, specifically, for degenerative disc disease of the lumbar spine with residuals of a fracture of the L5 transverse process. In April 2008 the Board also denied both claims, and the Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2009 order, granting a joint motion, the Court vacated the Board's decision and remanded these claims to the Board for further development and readjudication in compliance with directives specified. Consequently, in August 2009, the Board in turn remanded these claims to the RO to comply with the Court's order. In September 2011, upon receiving the case back, the Board determined there was indeed new and material evidence and, therefore, reopened the claim for service connection for a cervical spine disorder. But rather than immediately readjudicating this claim on its underlying merits, the Board instead then again remanded this claim, as well as the claim for a higher rating for the low back disability, to the RO for still further development and consideration. The additional development of these claims especially included having the Veteran undergo a VA compensation examination for a medical nexus opinion concerning the etiology of his cervical spine disorder - but particularly insofar as its potential relationship with his military service - and to reassess the severity of his already service-connected low back disability. The Veteran had this additional VA compensation examination in October 2011. In November 2011, after considering the results of that examination, the RO issued a decision granting service connection for the cervical spine disorder (specifically, for degenerative disc disease of C5-C6 and C6-C7 with spondylosis and partial fusion of C2, C3, and C4) and assigning an initial 10 percent rating for this additional disability retroactively effective from August 29, 2003, the date of receipt of the petition to reopen this claim. The Veteran has not since, in response, separately appealed either this initial rating or effective date, so that decision favorably resolved that claim such that it is no longer at issue before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). Also in the November 2011 decision, the RO granted service connection for peripheral neuropathy of the right and left lower extremities, as associated with the low back disability, and assigned a 20 percent initial rating for each lower extremity retroactively effective from October 24, 2011, the date of the VA compensation examination the Veteran had just had on remand. And since the radiculopathy is associated with the low back disability, so in effect part and parcel of it, and he has continued to request even additional compensation for his low back disability, the Board is considering not just whether he is entitled to a higher rating for his underlying low back disability, but also whether he is entitled to higher initial ratings for this associated bilateral lower extremity radiculopathy. AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating it is presumed a Veteran is seeking the highest possible rating for a disability, so all components of it, unless he expressly indicates otherwise). Indeed, even the RO acknowledged when assigning these additional ratings for the lower extremity radiculopathy that it did not resolve the appeal as concerning this additional disability, as it had conversely concerning the claim for the cervical spine disorder that is not associated with the low back disability. Since, however, the October 2011 VA compensation examination on remand did not sufficiently address the overall severity of the Veteran's low back disability, including insofar as this associated lower extremity radiculopathy, the Board must again remand this claim to the RO. When previously remanding this low back claim in September 2011, the Board had directed that the examiner provide responses to certain specific questions regarding the severity of this disability, to in turn provide the Board with the information needed to properly evaluate its severity according to the applicable rating criteria. So before deciding this claim, the Board must ensure there is compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (the Veteran is entitled, as a matter of law, to compliance with remand directives, and the Board itself commits error in failing to ensure this compliance). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND Although the Board sincerely regrets the additional delay in deciding this appeal that inevitably will result from this additional remand, it is necessary to ensure there is a complete record upon which to decide the Veteran's claims so he is afforded every possible consideration. The Veteran filed his claim for a rating higher than 40 percent for his low back disability in August 2003. The following month, effective September 26, 2003, VA again amended the rating criteria for evaluating disabilities of the spine and, in the process, renumbered the diagnostic codes pertinent to ratings referable to low back disabilities. According to that renumbering, Diagnostic Code (DC) 5237 now governs ratings for lumbosacral strain, DC 5239 for spondylolisthesis or segmental instability, DC 5242 for degenerative arthritis (see also DC 5003), and DC 5243 for intervertebral disc syndrome (IVDS), i.e., disc disease. See 68 Fed. Reg. 51,454-01 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a, DCs 5235-5243 (2006)). There earlier had been amendments in September 2002. As for those additional amendments in September 2003, where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the Veteran applies, absent congressional or Secretarial intent to the contrary. See Dudnick v. Brown, 10 Vet. App. 79 (1997). The amended criteria only may be applied prospectively, however, so only as of their effective date onwards; before that, only the former criteria may be applied. VAOPGCPREC 3-2000 (Apr. 10, 2000). Therefore, it is necessary to consider the Veteran's claim for a higher rating for his low back disability under the criteria that were in effect prior to September 26, 2003, so not just from that date forward. Pursuant to a June 2009 Court order, the Board has previously twice remanded this claim in order to obtain sufficient examination data to provide the Veteran with an informed evaluation of the extent of his low back disability. Specifically, the June 2004 VA examiner diagnosed degenerative disc disease at the L3-4 level, but explained that any information given with regards to the etiology or history of the disease would be purely speculative as the claims folder was not available for review. Therefore, as directed by the Court, the Board has twice asked the examiner to determine whether the degenerative disc disease at the L3-4 level is related to or part and parcel of the Veteran's service-connected low back disability, keeping in mind that, as it stands, service connection is only in effect for the degenerative disc disease affecting the adjacent L5 vertebra. Neither the January 2010 nor more recent October 2011 VA examiner provided a response to this question. Further, neither examiner listed degenerative disc disease at the L3-4 level as among the Veteran's diagnosed low back disabilities, even though the January 2010 examiner noted that past X-rays had showed annular disc bulging at L3-4 and the X-ray report from the October 2011 examination notes that questionable posterior positioning of L2 on the L3 vertebrae was seen along with possible posterior osteophytes, level not specified. The January 2010 VA examination report does not indicate the specific X-ray findings; instead, it notes only that there were "multiple degenerative changes of the lumbar spine." The October 2011 X-ray report recommends that a computed tomography (CT) scan be performed if clinically indicated. Therefore, on remand, the VA examiner must state whether the Veteran has degenerative disc disease at the L3-4 level that, like the disease at L5, is part and parcel of the service-connected low back disability. If the examiner determines that the Veteran does not have degenerative disc disease at the L3-4 level, this finding must be reconciled with the previous diagnoses of degenerative disc disease at this level, including the diagnoses in the June 2004 VA examination report, as well as the findings regarding any possible abnormalities in the more recent January 2010 and October 2011 VA examination reports. If, on the other hand, the examiner determines the Veteran does have degenerative disc disease at this L3-4 level, the examiner must explicitly state whether it is related to or part and parcel of the Veteran's service-connected low back disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (indicating that, if there is not evidence sufficient to differentiate or distinguish what measure of symptoms and impairment are attributable to the service-connected disability, from that which is not, 38 C.F.R. §§ 3.102 and 4.3 require that VA adjudicators resolve this doubt in the Veteran's favor and, for all intents and purposes, presume the disability and impairment in question is attributable to the service-connected disability). See also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain an opinion, it must ensure that the examination or opinion is adequate); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion that does not clearly address all of the relevant facts leaves the Board to impermissibly rely on its own lay opinion); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report as inadequate for rating purposes where the report does not contain sufficient detail). See also 38 C.F.R. § 4.2. Additionally, in section 18(a) of the October 2011 VA examination report, the examiner indicated the Veteran does not have a vertebral fracture. But service connection was granted for his degenerative disc disease specifically on the premise that it is a residual of a fracture of the L-5 transverse process. This finding was based on diagnostic imaging in years past, although previous examination reports have noted that the fracture has healed and cannot be seen by X-ray. Nevertheless, as the examiner was asked to provide findings related to any disability caused by fracture pursuant to the sections of the rating code regarding vertebral fractures and did not provide this information, albeit apparently because the X-ray taken during the October 2011 VA examination was negative for signs of fracture, the examination report is also insufficient for rating purposes in this other equally important regard. Id. Specifically, under the former rating criteria, the Veteran may be entitled to an additional 10 percent rating in conjunction with any rating assigned for limitation of motion if there is demonstrable deformity of the vertebral body or, under the revised criteria listed in the General Rating Formula for Diseases and Injuries of the Spine, if there is a vertebral body fracture with loss of 50 percent height or more. See 38 C.F.R. § 4.71a, DC 5285 (2003); 38 C.F.R. § 4.71a, DC 5235; 68 Fed. Reg. 51454 (explaining that where a 10 percent rating is not justified under the new code based on the vertebral deformity alone, any disabling vertebral body fracture with less than 50 percent loss of height may still be evaluated based on any specific disabling residuals that are present, such as pain or limitation of motion); 67 Fed. Reg. 56509 (explaining that vertebral body fractures with 50 percent loss of height or more may be assigned a 10 percent rating on that basis when there are symptoms such as pain, stiffness, or aching in the area of the fracture and otherwise evaluated by other signs and symptoms under the general formula to ensure the evaluation of actual disability as opposed to X-ray abnormalities). Lastly, in the January 2010 VA examination report, under section 4 and section 6, the examiner was asked to determine, separately, where objective pain began on range-of-motion testing and whether the Veteran had any functional loss or functional impairment of the thoracolumbar spine. If functional loss was found, the examiner was asked to identify the factors contributing to this functional loss. When evaluation of a disability is based at least partly on the extent it causes limitation of motion, the Board must also consider, in conjunction with the otherwise applicable DC, granting a higher disability rating when any functional loss due to pain, weakness, premature or excess fatigability, or incoordination is demonstrated, if these factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40 , 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). Indeed, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, No. 09-2873, 2011 WL 3346827, at *4 (Vet. App. Aug. 4, 2011) (emphasis added). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40. And if a Veteran is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, although pain may cause functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (emphasis added). Rather, pain must also affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. The January 2010 VA examiner found that there was functional loss or impairment of the thoracolumbar spine due to reduced movement, weakened movement, excess fatigability, pain on movement, and interference with sitting, standing, and weight-bearing. The findings in section 4 show identical endpoints both for the Veteran's functional range of motion and his range of motion without pain. So these findings indicate the range of motion reported may be his range of motion accounting for functional loss caused by pain. However, pursuant to the Court's holding in Mitchell, the examiner should be specifically asked to explicitly state whether the Veteran's pain on motion affects the normal working movements of the body such as excursion, strength, speed, coordination, or endurance, or, in other words, actually causes limitation of motion. If the pain does not set in until the terminal or endpoint of the range of motion, then the pain does not lessen the range of motion, whereas it does if it instead sets in at any earlier point in the range of motion because, for all intents and purposes, it is at that particular point when this occurs that VA would have to consider the motion limited to. So if the examiner finds that pain actually causes limitation of motion (not merely present), the examiner must specify the additional degree of limitation, if possible, and reconcile any differences between his findings and the examination data provided under section 4 of the January 2010 VA examination report. See Mitchell, 25 Vet. App. at 36-37; See DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995); Voyles v. Brown, 5 Vet. App. 451, 454 (1993); see also Barr, 21 Vet. App. at 312 (2007); Stefl, 21 Vet. App. at 124; Bowling, 15 Vet. App. at 12. Further development also is required because, as mentioned, the RO's November 2011 decision on remand granted service connection additionally for radiculopathy of the lower extremities and for degenerative disc disease of C5-C6 and C6-C7 with spondylosis and partial fusion of C2, C3, and C4, so subsequent to any medical opinion obtained regarding the Veteran's employability and potential entitlement to a TDIU. The Court (CAVC) has held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities and is part of a claim for increased compensation. See Mayhue v. Shinseki, 24 Vet. App. 273 (2011). In Roberson v. Principi, 251 F.3d 1378, 1384 (2001), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that once a claimant: (1)submits evidence of a medical disability, (2) makes a claim for the highest possible rating, and (3) submits evidence of unemployability, an informal TDIU claim is raised under 38 C.F.R. § 3.155(a). But there must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). And as the Court explained in Rice, if the Board determines the derivative TDIU claim requires further development before being adjudicated, the appropriate disposition is to remand the TDIU claim. As the Court pointed out in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be considered substantially gainful versus just marginal. See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). Therefore, an additional medical opinion is needed to assist in determining the impact that all of the Veteran's service-connected disabilities have on his employability, not just some, so including when additionally considering his lower extremity radiculopathy and cervical spine disorder. See Barr, 21 Vet. App. at 312 (2007); Stefl, 21 Vet. App. at 124; Bowling, 15 Vet. App. at 12. Lastly, efforts should be made to obtain any additional VA treatment records concerning the service-connected disabilities, that is, any dated since March 2010. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2). See also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (indicating VA has constructive, if not actual, notice and possession of these additional records since they are VA generated and maintained, even if not physically in the file). Accordingly, the claims are REMANDED for the following additional development and consideration: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. Obtain all additional records dated since March 2010 concerning evaluation and treatment of the Veteran's service-connected disabilities at issue. This especially includes, but is not limited to, any such records located at the VA Medical Center (VAMC) in Dublin, Georgia. If the records identified are not in the possession of a Federal department or agency, then the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(1), whereas subpart (c)(2) controls if they are. Appropriately notify the Veteran of any inability to obtain any identified records. 38 C.F.R. § 3.159(e)(1). 2. If still available to provide further comment, return the file to the examiner that performed the October 2011 VA compensation examination. If, for whatever reason, this examiner is no longer available to comment, then have someone else comment that is equally qualified. The examiner, whoever designated, is asked to make the following additional determinations: (a) Determine whether the Veteran has degenerative disc disease at the L3-4 level (so not just at the L5 level). (i) If he does not, reconcile this finding with the previous diagnoses of degenerative disc disease at the L3-4 level, including the diagnoses in the June 2004 VA examination report, as well as the findings regarding any possible abnormalities in the January 2010 and October 2011 VA examination reports. (ii) If instead confirmed that he does indeed have degenerative disc disease at this L3-4 level, indicate the likelihood (very likely, as likely as not, or unlikely) the disease at this level, like that at the adjacent L5, is related or attributable to or part and parcel of his service-connected low back disability. (b) The Veteran has been service-connected for a healed facture of the spine, specifically the L-5 transverse process, effectively since November 11, 1953. Previous examination notes show this fracture is healed and therefore may not appear on X-ray. So please state whether the Veteran's fracture of the L-5 transverse process (i) is a vertebral body fracture with loss of 50 percent or more of the height; (ii) results in any demonstrable deformity of the vertebral body; (iii) causes abnormal mobility requiring a neck brace (jury mast); or (iv) is with cord involvement, causes him to be bedridden and/or requires long leg braces. (c) Clarify whether the range-of-motion findings indicated in section 4 of the October 2011 VA examination report show the Veteran's limitation of motion caused by pain, as opposed to mere pain on motion that is not in and of itself of sufficient severity to cause additional limitations. To this end, if possible, state any additional degree of limitation by specifying the point at which pain sets in during the range of motion (i.e., whether not until the terminal or endpoint or, instead, at some point before) and reconcile any differences between the findings and those provided under section 4 of the January 2010 VA examination report. See Mitchell, 25 Vet. App. at 36-37. (d) Additional medical opinion is needed concerning whether the Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment (versus just what instead would be considered marginal employment). These service-connected disabilities are: (i) the low back disability, specifically, degenerative disc disease of the lumbar spine with residuals of a fracture of the L-5 transverse process; (ii) associated radiculopathy of the left and right lower extremities; (iii) degenerative disc disease of C5-C6 and C6-C7 with spondylosis and partial fusion of C2, C3, and C4; (iv) residuals of a simple fracture of the pelvis and right pubis, (v) hemorrhoids, and (vi) residuals of a fracture of the right zygoma. In making this determination, consideration may be given to his level of education, special training, and previous work experience, but not to his advancing age or to the impairment caused by disabilities that are not service connected. The examiner must discuss the underlying rationale for all opinions expressed and conclusions reached, if necessary citing to specific evidence in the file. 3. Review the medical examination report to ensure that all questions asked have been answered to the extent possible. If not, take corrective action. 38 C.F.R. § 4.2; Barr, 21 Vet. App. at 311; Stefl, 21 Vet. App. at 123. 4. Then readjudicate the claims in light of the additional evidence. If the claims are not granted to the Veteran's satisfaction, send him and his attorney a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).