Citation Nr: 1237204 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 08-09 536 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES Entitlement to an initial evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine, status post fusion. REPRESENTATION Appellant (Veteran) represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from March 1978 to November 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part, granted service connection for degenerative disc disease of the lumbar spine and assigned a 20 percent evaluation, effective December 1, 2006. That decision also granted service connection for tinnitus and assigned a 10 percent evaluation, effective December 1, 2006. In a January 2008 rating decision, the RO increased the evaluation for degenerative disc disease of the lumbar spine, status post fusion, based on surgical or other treatment necessitating convalescence to 100 percent disabling, effective February 28, 2007, and reassigned a 20 percent evaluation, effective April 1, 2007. The Board remanded this matter in March 2011 for additional development. The record shows that the Veteran's representative has submitted additional private treatment records since the issuance of the most recent February 2012 supplemental statement of the case. In the October 2012, the Veteran's representative indicated that the Veteran waives initial consideration by the Agency of Original Jurisdiction (AOJ) of evidence submitted. See 38 C.F.R. § 20.1304 (2011). FINDINGS OF FACT 1. From December 1, 2006, the Veteran's forward flexion has caused severe pain on motion. 2. The evidence of record does not indicate that, from December 1, 2006, the Veteran has had ankylosis in his lower spine, or that his lower spine disorder has caused incapacitating episodes. (CONTINUED ON NEXT PAGE) CONCLUSION OF LAW From December 1, 2006, the criteria for an initial disability rating of 40 percent, for the Veteran's service-connected lumbosacral spine disability, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235-5243 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the Veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the Veteran about the information and evidence that VA will seek to provide; and (3) inform the Veteran about the information and evidence he is expected to provide. In the case at hand, the Board finds that the VCAA notice requirements have been satisfied by a letter to the Veteran in December 2006. In this letter, VA informed the Veteran that, in order to substantiate his claim for service connection, the evidence needed to show that he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. The letters also provided the Veteran with information regarding the assignment of disability ratings and effective dates in claims for service connection that are granted (as in this case). See Dingess v. Nicholson, 19 Vet. App. 473 (2006). This claim arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Where a claim has been granted and an initial disability rating and effective date have been assigned, the claim has been substantiated and section 5103(a) notice is "no longer required because the purpose that the notice is intended to serve has been fulfilled." Dingess, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007) (noting that once an initial VA decision awarding service connection and assigning a disability evaluation and effective date has been made, section 5103(a) notice is no longer required). The Board notes, moreover, that the Veteran's claim has been readjudicated in several Supplemental Statements of the Case (SSOC) of record. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). To the extent there existed any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1), such error was nonprejudicial, in that it did not affect the essential fairness of the adjudicatory process. In point of fact, based on a review of the entire file, it is clear that the Veteran had a full understanding of the elements required to prevail on his claim for a higher initial rating. Moreover, neither the Veteran nor his representative has raised allegations of prejudice resulting from error on the part of VA. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009); see also Goodwin v. Peake, 22 Vet. App. 128 (2008). As to informing the Veteran of which information and evidence he was to provide to VA, and which information and evidence VA would attempt to obtain on his behalf, VA informed him that it had a duty to obtain any records held by any Federal agency. It also informed him that, on his behalf, VA would make reasonable efforts to obtain records which were not held by a Federal agency, such as records from private doctors and hospitals. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In that regard, in connection with the current appeal, VA has obtained the Veteran's service treatment records (STRs), relevant private treatment records, and relevant VA and private examination reports. Moreover, VA provided the Veteran with adequate VA orthopedic examinations in February 2007, November 2007, and April 2011. The Board notes that the latest examination was conducted over one year ago, and that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). Nevertheless, the Board finds a fourth VA orthopedic examination unnecessary here. Neither the Veteran nor his representative alleges a worsening of the back disorder since April 2011. Moreover, the claims file contains treatment records dated up until January 2012 which provide relevant information regarding the nature and severity of the Veteran's lumbar disability. For the foregoing reasons, the Board concludes that all reasonable efforts have been made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Claim for a Higher Initial Rating The Veteran retired from active service in November 2006. In December 2006, he filed a claim for service connection for a lumbar disability. In May 2007, the RO granted service connection for the disorder, and assigned a 20 percent disability rating effective December 1, 2006, the first day of the month following the Veteran's retirement from active service. 38 C.F.R. § 3.400 (2011). The Veteran appealed to the Board the assigned rating. In a January 2008 rating decision, the RO increased the evaluation for the lumbar spine disability based on surgical treatment necessitating convalescence to 100 percent disabling, effective February 28, 2007, and reassigned a 20 percent evaluation, effective April 1, 2007. 38 C.F.R. § 4.30; see also AB v. Brown, 6 Vet. App. 35, 38 (1993) (an appellant is presumed to be seeking the maximum available benefit even where an increase is granted during the appeal period). In the decision below, the Board will assess the evidence of record to determine whether higher evaluations have been warranted during the entire appeal period from December 1, 2006. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (where the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time); see also 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2011). The relevant evidence of record consists of statements from the Veteran, his spouse, and his friend, STRs, private treatment records, and VA compensation examination reports dated in February 2007, November 2007, and April 2011. In claims for disability compensation, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2011). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2011). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2011). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The factors involved in evaluating, and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2011). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2011). Disabilities of the back are rated under the General Rating Formula for Diseases and Injuries of the Spine of 38 C.F.R. § 4.71a . Under this provision, ratings of 10, 20, 30, 40, 50, 60, and 100 percent are authorized for such disorders as ankylosis, limitation of motion, and intervertebral disc syndrome (IVDS). See 38 C.F.R. § 4.71a . There is no evidence of record, or claims, for ankylosis. The record does however indicate limitation of motion associated with the spine disorder, and does indicate IVDS. Therefore, the Board will address those criteria under the rating code that apply to these aspects of his disorder. As the Veteran has already been assigned a rating of at least 20 percent during the appeal period, the Board will limit its increased rating analysis to those relevant provisions of the Rating Schedule that provide for higher disability evaluations pertaining to limitation of motion and IVDS (i.e., 40 and 60 percent evaluations). With regard to limitation of motion, a maximum rating of 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2011). With regard to IVDS, incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrant a rating of 40 percent. Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrant a rating of 60 percent. 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. Id. The relevant evidence in this matter indicates that, from December 1, 2006, the Veteran has not experienced incapacitating episodes, as defined under the code, during the appeal period. Nevertheless, the Board finds a higher initial rating warranted here because the evidence has demonstrated since December 1, 2006 that the Veteran has not been able to execute forward flexion beyond 30 degrees without severe pain. The lay evidence dated throughout the appeal period indicates that severe pain has caused significant limitation of motion in the Veteran's lumbar spine. In a January 2007 statement, the Veteran's long-time friend described the Veteran's difficulty walking and sitting due to "obvious pain" and stated that it was "glaringly obvious" the Veteran's physical state had changed over the years as a result of his lumbar disability. In a January 2007 statement, the Veteran's spouse described the Veteran's struggles to reach his feet to put on socks, his difficulty bending over to retrieve items from a shelf, and his pain when moving to avoid someone or something, or while walking down a ramp or a curb. In a March 2008 statement, the Veteran's spouse described how she was previously "amazed at [the Veteran's] tolerance for pain." But she described how his lumbar spine disability caused him obvious and disabling pain to such an extent he regularly spends long periods of time in bed to recover from the pain. She stated that "his back always seems to hurt." In a November 2008 statement, the Veteran's spouse described how pain interferes with the Veteran's ability to travel, and described the troubling side effects from the several medications the Veteran used to treat his back pain. The Veteran also provided lay statements in the record. In a June 2007 statement, the Veteran emphasized the difference between his localized lumbar spine pain, and radiating pain in his legs. He stated that the back pain "rules my life." He indicated that he needed pain medication to function and to sleep to better deal with his "constant" pain, and that every movement causes him pain. In a March 2008 statement, the Veteran described his "constant ..., continuous, nagging, burning" lumbar spine pain. The Veteran indicated that his back pain was present all day, while sitting, walking, standing, or driving, and stated that the pain was "draining - both physically and emotionally." In a November 2008 statement, the Veteran indicated that increased physical activity had allowed him to deal with pain better, but that the pain was still a constant presence in his life. He provided a chronology of his daily activity, which he asserts is dominated by pain, the limiting effects of pain, and the usage of narcotic medication to alleviate the pain. He indicated that he could not stand up straight and regularly slumped due to the pain. Moreover, he stated that his ability to flex forward was varied with pain causing less forward flexion on certain days than on other days. In an August 2010 statement, the Veteran reiterated his complaints of constant pain and loss of function due to pain. He indicated that, "lower back pain is my life." He indicated that as the day progresses, "it becomes unbearable to stand." He reiterated his usage of narcotic medication to suppress the pain, and the deleterious side effects he experiences. The preponderance of the medical evidence dated during the appeal period has tended to support the Veteran's claims to painful and limited motion. The STRs indicate that, at the time of discharge from service in November 2006, the Veteran had experienced severe pain on motion in his lower spine area. These records show that the Veteran was diagnosed in 2006 with a herniated disc in his lumbosacral disc space. From June to August 2006, the Veteran underwent three surgical procedures to include a laminectomy at L5-S1. Private treatment records dated from January 2007 indicate pain associated with status post "laminectomy syndrome[.]" Indeed, the pain led to a fourth lumbar spine surgery in February 2007. Private medical records indicate that the Veteran needed additional surgery due to "status post laminectomy, with pars defect bilaterally, LS-S1, and mechanical instability, L5-S1." Just prior to his fourth surgery, the Veteran underwent his first VA compensation examination in February 2007. In the report of record, the examiner noted that recent MRI indicated "a total loss of the L5-S1 disk and it is bone on bone." The examiner noted forward flexion of 45 degrees, but also noted the Veteran's "continued severe back pain" with radiating pain into the right leg. The examiner also noted moderate weakness, moderate fatigability, and an "almost complete loss of the lumbar curve[.]" He reinforced the significance of the Veteran's pain by noting that "the predominant picture here is severe pain." The record contains a July 2007 letter from the Veteran's private physician. The physician discusses the Veteran's back and hip disabilities, and discusses the Veteran's "severe lumbar pain" for which he prescribed the Veteran "narcotic analgesics." The physician emphasized that the Veteran was a "very motivated and compliant patient" but that his pain level "remains high[.]" The November 2007 VA examiner noted the Veteran's four prior surgeries and indicated that the "stability" of the Veteran's back had improved since his most recent fusion surgery, but that "there has been no change whatsoever in his pain." On range of motion testing, the examiner indicated forward flexion of 35 degrees. But the examiner also stated, when discussing the Veteran's lower back, that the "dominant feature here is the severe pain." The examiner also noted excess fatigability. The examiner detailed the narcotic medication the Veteran used to treat his pain, to include Percocet, Vicodin and Morphine. But he also indicated again the almost complete loss of lumbar curve, continued back pain with bilateral leg radiation, and characterized the pain as "severe" and constant. The examiner also found that the Veteran had not experienced incapacitating episodes in the previous 12-month period. Private clinical treatment records dated from 2007 to 2011 consistently reflect the Veteran's treatment for his lumbar spine disability and consistently note his complaints of pain, and usage of narcotic pain medication to treat the pain. These records also consistently note "Chronic Pain Syndrome" related to the lumbar disability. The April 2011 VA examiner noted the Veteran's history of pain and limitation related to his four lumbar-related surgeries. On range of motion testing, the examiner noted active forward flexion from 0 to 50 degrees, and passive forward flexion from 0 to 90 degrees. The examiner stated that repetitive range of motion x3 did not increase pain, fatigue, weakness, lack of endurance, or incoordination. But during testing, the examiner noted pain throughout the active forward flexion, and "pain at the extreme" during the passive forward flexion. The examiner noted the Veteran's complaints of "constant daily pain ... all over the right and left lower lumbar segments." The examiner detailed functional limitations associated with the lumbar spine pain such as disability with lifting, standing, walking, driving, and bending. The examiner noted that the Veteran used a special device to put his socks on. The examiner described the Veteran's gait as slow and guarded, with obvious back pain while walking. The examiner noted incapacitating episodes "at least twice a month lasting one or two days." The examiner closed his report noting the Veteran's "great deal of pain" and "great deal of difficulty" due to back pain. In sum, the evidence of record indicates that the Veteran is significantly disabled due to his lower back disorder. The evidence directly addressing the Veteran's range of motion for his lumbar spine indicates significant limitation of motion due to pain. Though the VA examiners indicate that the Veteran can forward flex over 30 degrees, the evidence nevertheless indicates that he experiences severe pain while doing so. As a body part that becomes painful on use must be regarded as seriously disabled, the Board finds that the Veteran effectively does not have forward flexion beyond 30 degrees. Though he can move his body forward, doing so is disabling. Bending forward over 30 degrees is therefore not a function he can achieve without significant disability. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca, supra; Mitchell v. Shineski, 25 Vet. App. 32, 43 (2011). Hence, the Board finds that the service-connected back disability more nearly approximates the criteria for the next higher rating and an initial rating of 40 percent warranted. 38 C.F.R. §4.7. However, the Board does not find an initial schedular rating in excess of 40 percent warranted at any time during the appeal period. The evidence does not show ankylosis or incapacitating episodes. Though the April 2011 VA report notes incapacitating episodes "at least twice a month lasting one or two days[,]" the evidence does not indicate that the Veteran has been prescribed bed rest by a physician, or that his episodes have had a total duration of at least six weeks over a 12-month period. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235-5243 (2011). Extraschedular 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id. See also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability at issue is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, there is a higher rating available under the DC addressed in this decision. But the Veteran's disorder is not productive of the manifestations that would warrant the higher rating. As such, the available schedular evaluations for the service-connected lower spine disorder at issue here are adequate. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected disorder under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Entitlement to an initial 40 percent evaluation for degenerative disc disease of the lumbar spine, status post fusion, is granted from December 1, 2006, subject to the regulations governing the payment of monetary benefits. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs