Citation Nr: 1237682 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 07-10 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to a separate compensable rating for objective neurological abnormalities associated with service-connected lumbosacral spine disability. REPRESENTATION Appellant represented by: Sean Ravin, Attorney ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran had active service from September 1967 to February 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which granted the Veteran's claim of service connection for lumbosacral spine degenerative disc disease with lumbosacral spine strain and residuals of laminectomy syndrome with radiculitis ("lumbosacral spine disability") and assigned a 40 percent rating effective November 17, 1999. In March 2007, the Veteran notified VA that he had moved to the jurisdiction of the RO in Des Moines, Iowa. That facility retains jurisdiction over this appeal. The Board's April 2011 decision (in pertinent part) denied entitlement to an initial rating in excess of 40 percent for service-connected lumbosacral spine disability, and remanded the issue of entitlement to a separate compensable rating for objective neurological abnormalities associated with service-connected lumbosacral spine disability. The Board's April 2011 decision is final as to the matters decided on the merits therein. By rating decision in July 2012, the Veteran was awarded service connection for depression. The United States Court of Appeals for the Federal Circuit has held that the award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by a notice of disagreement on such issue. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Therefore, that matter is not before the Board. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issue on appeal. FINDING OF FACT Throughout the period of the appeal, the preponderance of the evidence has weighed against a finding that any objective neurological abnormalities are associated with the Veteran's service-connected lumbosacral spine disability. CONCLUSION OF LAW A separate compensable rating for a ny objective neurological abnormalities associated with the Veteran's service-connected lumbosacral spine disability is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.71a, Diagnostic Code 5242 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832 ) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Turning to the specific notice requirements applicable in the instant case, the Board notes that Veteran's separate rating claim arises from his disagreement with the initial rating assigned following the grant of service connection. Significantly, once service connection is granted, the claim is substantiated. Accordingly, additional notice is not essential and any defect in such notice is not considered prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Nevertheless, the Board observes that in this case the Veteran was informed, by way of August and September 2003 letters, of the information and evidence necessary to warrant entitlement to the benefits sought on appeal. He was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent medical records (including VA and private) has been completed. The Veteran has not identified any pertinent, outstanding records that could be obtained to substantiate his claim. The Board is also unaware of any such records. Moreover, the Veteran has been afforded appropriate VA examinations. Therefore, the Board concludes that VA has complied with its duty to assist the Veteran. Accordingly, the Board will address the merits of the claim. B. Factual Background Historically, the Veteran's STRs note his complaints of a treatment for low back pain on multiple occasions during service. Following service, private outpatient treatment records from Dr. R show that the Veteran was treated for low back pain from 1992 to 2004. Examination in May 2000 revealed no neurological deficits. From 2002 to 2004 the Veteran complained of radicular pain. In a January 2004 opinion, Dr. B reviewed the Veteran's claims file found that the Veteran experienced "nerve damage (numbness)" in his feet which was associated with his lumbosacral spine disability. Dr. B also stated that it was clear that the Veteran "has a serious back problem with foot numbness." On VA examination in March 2005, the Veteran complained of constant pain the lumbar and lumbosacral area with radiation to the right gluteal area and posterior thigh down to the right calf. The Veteran stated that he used a cane, a back belt support, and a TENS unit. The Veteran reported having back surgery in August 1991. On examination straight leg raising was to 60 degrees on the right and to 70 degrees on the left. The examiner attributed this limitation to the Veteran's limited spine motion. There was sciatic nerve irritation present. X-ray studies of the lumbosacral spine showed minimal spondylosis deformans, mild loss of disc height at L4-5 and L5-S1 with vacuum disc at L5-S1, and mild L4-5 and moderate L5-S1 facet arthropathy. An MRI dated prior to the Veteran's 1991 surgery was reviewed and showed considerable disk protrusion at L4-5 and to a lesser degree at L5-S1 and L3-4. The diagnoses were chronic lumbar and lumbosacral strain/sprain with pelvic instability and limited motion, post-laminectomy syndrome with radiculitis, and degenerative disc disease of the lumbar spine. In an April 2005 rating decision, the RO awarded service connection for lumbosacral spine disability, effective November 17, 1999. VA outpatient treatment records note the Veteran's ongoing treatment for diabetes mellitus beginning in 2006. In March 2007, the Veteran complained of chronic low back pain which was increasing in severity. He denied any muscle weakness, bladder or bowel incontinence, or numbness or tingling in any of his extremities. On VA spine examination in May 2008, the Veteran's complaints included back spasms and constant and chronic low back pain. He denied any bowel or bladder control issues. Examination revealed normal sensation throughout and normal reflexes. The diagnoses were chronic low back pain, a history of disc herniation, multiple injuries especially before surgery in 1991, and no objective neurological disorder. On VA spine examination in September 2010, the Veteran complained of low back pain with radiation to both legs and associated numbness and aching. The Veteran denied any history of urinary or fecal incontinence, neurological problems associated with his back disability, or incapacitating episodes of spine disease. On examination, reflexes were normal. There was decreased sensation to light touch, pain or pinprick on the left lower extremity; neurological examination was otherwise normal. X-ray studies showed mild degenerative disc disease at L4-5 and L5-S1. The diagnoses were herniated disc L4-5, post lumbar laminectomy, bilateral lumbar radiculopathy, and degenerative joint disease of the lumbar spine. VA neurological examination in April 2011 showed no focal motor or sensory deficits. A May 2011 VA neurological examination report notes the Veteran's current complaints of chronic back pain and spasms. He denied bowel or bladder impairment. He also denied any radicular symptoms since herniated disc surgery in 1991. The Veteran also reported a history of diabetes mellitus with intermittent bilateral neuropathy in his hands and feet. The Veteran denied unilateral neuropathic pain, constant pain, or other focal neurologic symptoms. On examination, all cranial nerves were intact. Cerebellar examination was normal. Finger-nose-finger (FNF) test was intact and essentially bilaterally symmetric. No dysmetria was noted. Rapid alternating movements (RAM) test was intact. Motor bulk, tone and action were all intact with 5/5 strength. There was no tremor. Gait was essentially normal but slow. Decreased light touch was noted on the sole of the left foot and equivocally on the sole of the right foot. Light touch was intact distally on all 10 toes and all 10 fingers. Vibratory sense was intact distally on the fingers and toes. The Veteran reported a "dead area" in response to light touch on the mid-right dorsal foot. He was able, with his eyes closed, to detect the stimulus with less than 10 grams of pressure (very light touch) and did not erroneously believe he was being touched in the absence of a stimulus. Numerous focal (one centimeter) areas in the lower legs and arms were "dead" with intact sensation distally and in surrounding areas. The diagnoses included: early peripheral neuropathy bilateral feet secondary to diabetes mellitus (otherwise normal neurologic examination); recurrent muscle spasm of lumbar spine; mild osteoarthritis of the lumbar spine; and history of surgically corrected L4-5 vertebral disc herniation with bilateral lower extremity radiculopathy (resolved 1991). After reviewing the Veteran's claims file, to include the medical records noted above, the VA examiner opined that the Veteran's claimed neurologic abnormalities (diagnosed on examination as peripheral neuropathy) are not caused by or a result of his service-connected back disability or any other injury or incident related to service. The examiner instead attributed the Veteran's early peripheral neuropathy to his nonservice-connected diabetes mellitus. This conclusion was based on the duration of the diagnosis, and control and absence of other explanations (normal B12, folate, and other laboratory testing). The examiner further opined that the areas that are "dead" or "numb" are "small islands of apparent altered sensation," none of which are larger than two centimeters in diameter and "are definitely non-anatomic. These areas are not attributable to a peripheral nerve dysfunction." C. Legal Criteria and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims files, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran alleges that a separate rating is warranted for neurological symptoms associated with his service-connected lumbosacral spine disability. At the outset, the Board observes that disability ratings are determined by the application of VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two ratings shall be applied, the higher rating 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. In considering the appropriate rating to assign in a particular case, when the effects of a service-connected disability have not been clinically disassociated from those of a nonservice-connected disorder, all relevant signs and symptoms must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52,698 (1996)). Additionally, the anti-pyramiding provisions of 38 C.F.R. § 4.14 direct that the evaluation of the same disability or manifestation under various diagnoses is to be avoided. Indeed, in Esteban v. Brown, 6 Vet. App. 259 (1994), the Court held that, for purposes of determining whether an appellant is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other two conditions. When there is an approximate balance of positive and negative 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(b); 38 C.F.R. §§ 3.102, 4.3, Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As noted in the Introduction, an April 2005 rating decision granted the Veteran's claim of service connection for lumbosacral spine disability and assigned a 40 percent rating effective November 17, 1999. The Veteran appealed that decision. An April 2011 Board decision, in pertinent part, denied entitlement to a higher initial rating for lumbosacral spine disability with respect to the orthopedic manifestations, and remanded the issue of entitlement to a separate compensable rating for objective neurological abnormalities associated with lumbosacral spine disability. Accordingly, the Board will forego further consideration of the orthopedic manifestations and will instead confine its analysis to whether a separate rating is warranted for any neurological symptoms. See 38 C.F.R. §4.124a - Schedule of ratings-neurological conditions and convulsive disorders. In this regard, the Board notes that the rules against pyramiding do not forbid the assignment of a separate evaluation for the Veteran's neurological symptoms, which are independent of the orthopedic manifestations upon which his current disability rating is based. See 38 C.F.R. § 4.14; Esteban, supra. In considering whether a separate neurological rating is warranted, the Board's analysis is analogous to the reasoning applied in an appeal for secondary service connection. See38 C.F.R. §§ 3.303, 3.310 (establishing service connection on a secondary basis essentially requires evidence sufficient to show that a current disability exists; and that the current disability was either caused or aggravated by a service-connected disability); see also Allen v. Brown, 7 Vet. App. 439 (1995) (secondary service connection is permitted based on aggravation, with compensation payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability). Indeed, while couched in terms of a higher disability rating, the central question underlying the claim at issue is whether any current neurological condition is etiologically related to the Veteran's service-connected lumbosacral spine disability. In an attempt to answer the aforementioned question, the Board remanded the Veteran's claim for a VA examination in April 2011. Such an examination was conducted in May 2011. At that time, the Veteran complained of chronic back pain and spasms. He denied bowel or bladder impairment, unilateral neuropathic pain, constant pain, or other focal neurologic symptoms. The examiner noted the Veteran's history of low back pain with radiation to both legs and associated numbness and aching, as well as his history of diabetes mellitus with intermittent bilateral neuropathy in his hands and feet. Contemporaneous examination revealed early peripheral neuropathy of both feet, but was otherwise negative for any neurological abnormalities. In addition to documenting the Veteran's complaints and the current clinical findings, the examining VA physician reviewed the contents of the claims file and opined that the Veteran's claimed neurologic abnormalities (diagnosed on examination as peripheral neuropathy) are not caused by or a result of his service-connected back disability or any other injury or incident related to service. Rather, they are attributable to his nonservice-connected diabetes mellitus. The Board considers the VA examiner's etiological findings to be both probative and persuasive with respect to the issue on appeal. See Guerrieri v. Brown, 4 Vet. App. 467 (1993); Gabrielson v. Brown, 7 Vet. App. 36 (1994) (noting that the credibility and weight to be attached to medical opinions are within the province of the Board as adjudicator). The VA examiner's findings were based on a thorough review of the Veteran's medical records, lay assertions, and other pertinent information contained his claims file, and was supported by a detailed rationale. Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims file and the Veteran's history, and the thoroughness and detail of the opinion); Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). The opinion of Dr. B, noted above, links numbness in the Veteran's feet to his lumbosacral spine disability, but this opinion is without any stated rationale, to include citation to specific medical literature or studies, or for that matter, to pertinent items within the record tending to prove the opinion advanced. No discussion of the Veteran's diabetes is included in the opinion. Among the factors for assessing the probative value of a medical opinion are the thoroughness and the detail of the opinion. See Prejean, supra. Conversely, the 2011 VA opinion is based on credible and probative rationale, and it outweighs the probative value of the opinion by Dr. B. In this regard, notice is taken that the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App 614 (1992). After considering the totality of the record, the Board finds that the evidence of record does not establish an nexus between the Veteran's current neurological problems and his lumbosacral spine disability. Accordingly, in the absence of any other probative evidence supporting the assignment of the separate neurological rating, the Board finds that the Veteran's claim for such an evaluation must be denied. In this regard, the Board has considered the provisions of Mittleider. However, it finds that these provisions are inapplicable as the Veteran's neurological symptoms have been (clinically) attributed to his nonservice-connected diabetes mellitus and thereby have been distinguished from his service-connected lumbosacral spine disability. See Mittleider, 11 Vet. App. at 182. The Board recognizes that the Veteran has attributed his neurological problems to his service-connected low back disability. Nevertheless, while the Veteran is competent to report a history of lower extremity pain and related symptoms of numbness and aching, which are within the realm of his personal experience, whether or not the neurological disability shown is a manifestation of his service-connected lumbosacral spine disability is a medical question that is beyond the realm of resolution by lay observation. It requires medical knowledge and training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Court). The Board finds that the Veteran has not met the criteria for the assignment of a separate rating lower extremity neuropathy, or any other neurological symptoms associated with his lumbosacral spine disability. 38 C.F.R. § 4.124a. In reaching this conclusion, the Board has considered the benefit-of-the-doubt rule, but finds that, as the preponderance of the evidence is against the Veteran's claim, that rule is not for application, and the claim must be denied. 38 U.S.C.A. § 5107 (b); Gilbert, 1 Vet. App. at 53 (1990). Finally, the Board observes that, in view of its finding that any separate neurological rating is not warranted in this instance, it has no basis to consider whether referral for a higher rating is warranted based upon the extra-schedular factors set forth in 38 C.F.R. § 3.321(b)(1). In conclusion, the preponderance of the evidence is against the Veteran's claim for a separate compensable rating for objective neurological abnormalities associated with his service-connected lumbosacral spine disability. Accordingly, the appeal in the matter must be denied. ORDER A separate compensable rating for objective neurological abnormalities associated with service-connected lumbosacral spine disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs